Bombay High Court

Atanu Anilkumar Mandal vs Antul Latif Kazi on 24 June, 2025

2025:BHC-AUG:15876
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                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                BENCH AT AURANGABAD
                            CRIMINAL APPEAL NO. 134 OF 2013
          1.    Atanu s/o Anilkumar Mandal,
                Age 46 years, Occ. Service as,
                Senior Manager [Retail Sales] (HO),
                Power of Attorney Holder of,
                Indian Oil Corporation Ltd.,
                A Govt. of India undertaking and a,
                Company duly incorporated under the,
                Companies Act, 1956, having its registered,
                Office at Indian Oil ahawan, G h 9,
                Ali Yawar Jung Marg, aandra (East),
                Mumbai h 400 051.                                           .... Appellant
                                                                    [Orig. Complainant]

                      VERSUS

          1.    Mrs. Antul Latif Kazi,
                Prop. National Auto Service,
                Age: 70 Years, Occu. ausiness,
                R/o : National Highway No.6,
                Nashirabad, District Jalgaon.

          2.    The State of Maharashtra,
                Through Nashirabad Police Station,
                Dist. Jalgaon.
                [added as per leave granted by the Hon'ble
                Court it's order dt. 27.09.2022]
                                                                     ..... Respondents

          Appearance :
          Mr. A. P. ahandari, Advocate for the Appellant.
          Mr. Rajendra N. Chavan, Advocate for Respondent No.1.
          Mr. D. J. Patil, APP for Respondent No.2 h State.
          _________________________________________________________________

                                        CORAM                : NEERAJ P. DHOTE, J.
                                        Reserved On          : 29th April, 2025
                                        Pronounced On : 24th June, 2025




                                                 1
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JUDGMENT :

1. This is an Appeal fled under Section 378 [4] of the Code of Criminal Procedure, 1973 [hereinafter referred to as 'Cr.P.C'] against the Judgment and Order dated 27/03/2012, passed by the learned Judicial Magistrate, First Class [2nd Court], Jalgaon [hereinafter referred to as 'the learned Trial Court'], in Summary Criminal Case No.6164/2002, acquitting Respondent No.1 / Accused for the ofence punishable under Section 138 of the Negotiable Instruments Act, 1881 [hereinafter referred to as 'the N. I.' Act].

2. The facts giving rise to the present Appeal are as under :

[I] The Appellant fled the above referred Complaint before the learned Trial Court contending that, he was working as a Deputy Manager [Retail Sales] with the Indian Oil Corporation Limited, Jalgaon [hereinafter referred to as 'the Corporation'] which was registered. The Registered Office of the Corporation was situated at aandra [East], Mumbai and the aulk Depot of Corporation was situated at ahadli, P.O. Nashirabad, Jalgaon, from where, the diesel, petrol and oil etc. used to be supplied to the various dealers. Respondent No.1 was a dealer at Nashirabad. The lubes were supplied on credit to Respondent No.1, against which, a post-dated Cheque No.901556 drawn on the aank of Maharashtra, dated 08/06/2002 amounting to Rs.14,70,074/-, was issued by Respondent No.1 in favour of the Corporation. The said Cheque was deposited with the aanker of Corporation i.e. the State aank of India, M.I.D.C. aranch, Jalgaon, which came to be dishonoured on 10/06/2002 with a remark as ''Exceeds Arrangement".

[II] The notice was issued on 20/06/2002 by the Registered Post with Acknowledgment Due [hereinafter referred to as 'R.P.A.D.'] to Respondent No.1 within ffteen [15] days from returning of the memo by the aank along with the Cheque. The said notice was received by

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Respondent No.1. However, Respondent No.1 did not pay the amount of Cheque, which was demanded by the said notice. Hence, the Complaint was fled for the ofence punishable under Section 138 of the N. I. Act and the necessary documents were fled along with Complaint.

[III] The learned Trial Court issued process against Respondent No.1. The learned Trial Court recorded the particulars for the ofence against Respondent No.1 below Exhibit h 27 / 38, which was denied and Respondent No.1 did not plead guilty. The Appellant fled the Evidence Affidavit below Exhibit h 45 and he was cross-examined on behalf of Respondent No.1. The Cheque, aank Memo, Communication issued by the Corporation, Copy of Acknowledgment Due Receipt, Acknowledgment Card and the Copy of General Power of Attorneys dated 28/09/2000 and 10/05/2005 were brought on record from Exhibits h 46 to 51. The Appellant fled a Purshis closing the evidence below Exhibit h 54. The learned Trial Court recorded the statement of Respondent No.1 under Section 313 of Cr.P.C below Exhibits h 55 and

56. Respondent No.1 denied the case of Appellant. It was the defence that, three [3] blank Cheques, which were given as the security, were misused and the lubes was not supplied by the Corporation. After hearing both the sides and on appreciating the evidence available on record, the learned Trial Court passed the impugned Judgment and Order as referred above in Paragraph No.1.

3. It is submitted by the learned Advocate for the Appellant that, the lube was supplied by the Corporation to Respondent No.1, against which, the Cheque was issued and, therefore, it is clearly established that, the Cheque was issued for legally enforceable debt. The Appellant examined himself in support of his case. The subsequent Power of Attorney refers to the delegation of powers to

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the Appellant and, therefore, there was ratifcation of the act of the Appellant in fling the Complaint pursuant to Section 196 of the Indian Contract Act, 1872 [hereinafter referred to as 'the said Act']. Respondent No.1 had preferred an Application in connected Complaint which gave rise to Appeal bearing No.463/2007 praying for time to pay the dues. The learned Trial Court did not apply mind and passed the impugned Judgment and Order. In support of his contention, he cited the following Judgments :

[i] National Small Industries Corporation Ltd. Vs. State [NCT of Delhi] and Ors. ; 2009 AIR SCW 713 ;

[ii] Jugraj Singh and Another Vs. Jaswant Singh and Others ; 1970 STPL 848 SC ;

[iii] Rohitbhai Jivanlal Patel Vs. State of Gujarat and Anr. ;

2019 STPL 3096 SC ;

[iv] Doshi Brothers, Mumbai Vs. State of Maharashtra and Others ; 2019 STPL 13594 Bombay ;

[v] M/s TRL Krosaki Refractories Ltd. Vs. M/s SMS Asia Private Limited and Anr. in Criminal Appeal No. ___ of 2022 [Arising out of SLP (Cri.). No.3113 of 2018) ;

4. It is submitted by the learned Advocate for Respondent No.1 that, no Power of Attorney was fled along with the Complaint. The initial Power of Attorney is silent regarding authorization to the Appellant to fle the Complaint. The subsequent Power of Attorney is silent in respect of the case details and so, there was no ratifcation. The Appellant fled the Complaint in his own name and in his personal capacity. The Complaint was not fled in the companies' name. There is no evidence to show that, the original person, who delegated the powers, was having the powers to do so. The Appellant had no personal knowledge of the factual aspects of the matter. The notice, which was issued by some other person named Mr. ahadli, was not the proper notice as there was no specifc demand of the amount. Merely seeking time by Respondent No.1 to pay the amount will not amount

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to accepting the liability. The initial burden is on the Complainant. The material was not delivered to Respondent No.1 and the Cheques, which were deposited by the Corporation, were deposited by way of security. As there was no legal authorization to fle the Complaint and no legally enforceable debt, the learned Trial Court has rightly passed the impugned Judgment and Order of acquittal. In support of his contention, he cited the following Judgments :

[i] M/s. Satish and Company Vs. M/s. S. R. Traders and Others ; 1998 CRI. L. J. 419 ;

[ii] A. C. Narayanan and Another Vs. State of Maharashtra and Others ; 2013 DGLS (SC) 748 ;

[iii] Milind Shripad Chandurkar Vs. Kalim M. Khan and Anr. ; 2011 AIR SCW 1773 ;

[iv] Gamini Bala Koteswara Rao and Others Vs. State of Andhra Pradesh Through Secretary ; [2009] 10 SCC 636 ;

5. aefore considering the evidence available on record, the Judgments cited by both the sides are considered.

6. In National Small Industries Corporation Ltd. Vs. State (NCT of Delhi) and others [Supra], question for consideration in the Appeal was, 'where a complaint in regard to dishonour of a cheque is made by a Government company, represented by its ofcer who is a public servant, whether the exemption made under clause (a) of the proviso to section 200 of Code of Criminal Procedure, ( 'Code' for short) is available ?

6.1. The relevant Paragraph Nos.10, 11, 13 and 14 are reproduced below :

"10. The term 'complainant' is not defned under the Code. Section 142, NI Act requires a complaint under Section 138 of that Act, to be made by the payee (or by the holder in due course). It is thus evident that in a complaint relating to dishonour of a cheque (which has not been endorsed by the payee in favour of anyone), it is the payee alone who can

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be the complainant. The NI Act only provides that dishonour of a cheque would be an ofence and the manner of taking cognizance of ofences punishable under Section 138 of that Act. However, the procedure relating to initiation of proceedings, trial and disposal of such complaints, is governed by the Code. Section 200 of the Code requires that the Magistrate, on taking cognizance of an ofence on complaint, shall examine upon oath the complainant and the witnesses present and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses. The requirement of Section 142 of NI Act that payee should be the complainant, is met if the complaint is in the name of the payee. If the payee is a company, necessarily the complaint should be fled in the name of the company. Section 142 of NI Act does not specify who should represent the company, if a company is the complainant. A company can be represented by an employee or even by a non-employee authorized and empowered to represent the company either by a resolution or by a power of attorney.

11. Section 138, NI Act mandates that payee alone, whether a corporeal person or incorporeal person, shall be the complainant. Section 200 of the Code contemplates only a corporeal person being a complainant. It mandatorily requires the examination of the complainant and the sworn statement being signed by the complainant. If Section 142 of NI Act and Section 200 of the Code are read literally, the result will be :

(a) the complainant should be the payee of the cheque; and (b) the complainant should be examined before issuing process and the complainant's signature should be obtained on the deposition. Therefore, if the payee is a company, an incorporeal body, the said incorporeal body can alone be the complainant. The mandatory requirement of Section 200 of the Code is that a Magistrate taking cognizance of an ofence on complaint, shall examine upon oath the complainant, and that the substance of such examination reduced to writing shall be signed by the complainant. An incorporeal body can obviously neither give evidence nor sign the deposition. If literal interpretation is applied, it would lead to an impossibility as an incorporeal body is incapable of being examined. In the circumstances, a harmonious and purposive interpretation of Section 142 of NI Act and Section 200 of the Code becomes necessary. Section 142 only requires that the complaint should be in the name of the payee.

Where the complainant is a company, who will represent the company and how the company will be represented in such proceedings, is not governed by the Code but by the relevant law relating to companies. Section 200 of the Code mandatorily requires an examination of the complainant ; and where the complainant is an incorporeal body, evidently only an employee or representative can be examined on its behalf. As a result, the company becomes a de jure complainant and its employee or other representative, representing it in the criminal proceedings, becomes the de facto complainant. Thus in every complaint, where the complainant is an incorporeal body, there is a complainant - de jure, and a complainant - de facto. Clause (a) of the proviso to Section 200 provides that where the complainant is a public servant, it will not be necessary to examine the complainant and his witnesses. Where the complainant is an incorporeal body represented by one of its employees, the employee who is a public servant is the de facto complainant and in

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signing and presenting the complaint, he acts in the discharge of his ofcial duties. Therefore, it follows that in such cases, the exemption under Clause (a) of the frst proviso to Section 200 of the Code will be available.

13. Resultantly, when in a complaint in regard to dishonour of a cheque issued in favour of a company or corporation, for the purpose of Section 142, NI Act, the company will be the complainant, and for purposes of Section 200 of the Code, its employee who represents the company or corporation, will be the de facto complainant. In such a complaint, the de jure complainant, namely, the company or corporation will remain the same but the de facto complainant (employee) representing such de jure complainant can change, from time to time. And if the de facto complainant is a public servant, the beneft of exemption under Clause (a) of proviso to Section 200 of the Code will be available, even though the complaint is made in the name of a company or corporation.

14. Thus, the answer to the question raised is :

Where an incorporeal body is the payee and the employee who represents such incorporeal body in the complaint is a public servant, he being the de facto complainant, Clause (a) of the proviso to Section 200 of the Code will be attracted and consequently, the Magistrate need not examine the complainant and the witnesses.

The appeal is accordingly allowed, the order of the High Court is set aside and summoning order of the Magistrate stands restored."

7. In Jugraj Singh and Another Vs. Jaswant Singh and Others [Supra], the question involved was whether, the authorized person [Mr. Chawla] possessed the Power of Attorney for executing the document and for presentation of it for registration and whether the second Power of Attorney was efective to render valid the transaction of sale and the registration of the document both earlier than the Power of Attorney. It is observed that, 'Now the law is quite clear that ratifcation relates back to the original act provided there is a disclosed principal and this has been stated nowhere better than by Lord Macnaghten in Keighley Maxsted and Co. v. Durant, 1901 AC 241 at pp 246, 247, quoting Tindal, C. J. in Wilson v. Tumman, (1843) 6 M & G236 at p. 242'.

"That an act done, for another, by a person though without any precedent authority whatever, becomes the act of the principal, subsequently ratifed by him' is the known and well-established rule of law. In that case the principal is bound by the act, whether it be for the detriment or his advantage, and whether it be founded on a tort or on a contract, to the

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same efect as be, and with all the consequences which follow from, the same act done by his previous authority. And so by a wholesome and convenient fction, a person ratifying the act of another, who, without authority, has made a contract openly and avowedly on his behalf, is deemed to be, in fact he was not, a party to the contract".

Relation back of an act of ratifcation was expressly accepted in this case. Other cases have been summarised in the manual of the Law and Practice of Powers of Attorney issued by the Council of the Chartered Institute of Secretaries; This follows from the maxim of law "Omnis ratihabitio retrotrahitur et mandato priori aequiparatur" that is to say, ratifcation is thrown back to the date of the act done, and the agent is put in the same Position as if he had authority to do the act at the time the act was done by him. The learned authors quote the case of the House of Lords which we have above cited " end add to it certain other cases with which we do not consider necessary to encumber this judgment."

8. One of the proposition in Judgment in Rohitbhai Jivanlal Patel Vs. State of Gujarat and Anr. [Supra] was that, the Accused has to bring on record such facts and circumstances which may lead the Court to conclude either that the consideration did not exist or that its non- existence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that the consideration did not exist.

9. In Doshi arothers, Mumbai Vs. State of Maharashtra and Others [Supra], the Proprietor of proprietary concern, fled a private complaint under the N. I. Act against the Company and its Director. The complaint was dismissed and Company and its Director came to be acquitted. The said Judgment is on the facts and circumstances of that case.

10. In M/s TRL Krosaki Refractories Ltd. Vs. M/s SMS Asia Private Limited and Anr. [Supra], the solitary issue for consideration was whether the complaint fled by the appellant under Section 138 of the N. I. Act was in accordance with the requirement under Section 142 of the N. I. Act. ay considering the previous Judgment, including the Judgment in A. C. Narayanan Vs. the State of Maharashtra and Anr. [2014] 11 SCC 790, it is observed that, in that view, the position that would emerge is that when a company is the payee of the cheque based

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on which a complaint is fled under Section 138 of N. I. Act, the complainant necessarily should be the Company which would be represented by an employee who is authorized. Prima-facie, in such a situation the indication in the complaint and the sworn statement (either orally or by afdavit) to the efect that the complainant (Company) is represented by an authorized person who has knowledge, would be sufcient. The employment of the terms "specifc assertion as to the knowledge of the Power of Attorney holder" and such assertion about knowledge should be "said explicitly" as stated in A. C. Narayanan (supra) cannot be understood to mean that the assertion should be in any particular manner, much less only in the manner understood by the accused in the case. All that is necessary is to demonstrate before the learned Magistrate that the complaint fled is in the name of the "payee" and if the person who is prosecuting the complaint is diferent from the payee, the authorisation therefor and that the contents of the complaint are within his knowledge. When, the complainant / payee is a company, an authorized employee can represent the company. Such averment and prima facie material is sufcient for the learned Magistrate to take cognizance and issue process. If at all, there is any serious dispute with regard to the person prosecuting the complaint not being authorized or if it is to be demonstrated that the person who fled the complaint has no knowledge of the transaction and, as such that person could not have instituted and prosecuted the complaint, it would be open for the accused to dispute the position and establish the same during the course of the trial. As noted in Samrat Shipping Co. Pvt. Ltd. (supra), dismissal of a complaint at the threshold by the Magistrate on the question of authorisation, would not be justifed. Similarly, we are of the view that, in such circumstances entertaining a petition under Section 482 to quash the order taking cognizance by the Magistrate would be unjustifed when the issue of proper authorisation and knowledge can only be an issue for trial.

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11. In M/s Satish and Company Vs. M/s S. R. Traders and others [Supra], the question for consideration was whether the complaint which was fled by and on behalf of the company was competent as on the date of fling the same and what was the efect of the alleged authorisation in favour of Witness No.1 fled after one [1] year and another question for consideration was, where proper authorisation letter or Power of Attorney was not fled, along with the complaint, whether the company can ratify such actions later or whether such authorisation letter can be fled later so as to regularise the irregular proceedings. The relevant observations reads as under :-

"25. The object of law in all such cases, that the complaint or suit shall be fled by a person duly authorised, is that, such proceedings will defnitely have fnancial consequences on the company so as to bind the company for the actions of such persons. A company which sufered, a decree or order, at the hands of such a person, who was not duly authorised, may repudiate the order and decree of a competent Court as not binding. Even in criminal cases an aggrieved person may also fle a suit for malicious prosecution in case a false complaint was fled. Even in such cases also the company may take up a plea that it was not bound by the actions of a particular ofcer on the ground that he was not duly authorised in that behalf. Therefore, a principle has emerged that any legal proceedings whether criminal or civil shall be instituted by the company through its authorised ofcers, so as to bind the company. In this view of the matter, therefore, there shall be a proper initiation of the proceedings by fling a proper complaint so that the Court may take cognizance of the same and if the complaint, as fled, was not maintainable as on the date of its fling, it was liable to be dismissed and subsequent ratifcation cannot revive it. For this principle, I am supported by a judgment of the High Court of Madras in "K. N. Sankaranarayanan v. Shree Consultations" (1994) 80 Com Cas

558. In that case, one of the Directors fled a petition for prevention of oppression and mismanagement on behalf of the company without the approval of the Board of Directors and on that basis it was contended that such a suit instituted without the authority of the Board was incompetent. Negativing the contention of the other side in that case, that subsequently, a letter of consent to fle the petition under Ss. 397 and 398 of the Companies Act was given, the Court held that any cause instituted without the authority makes it invalid from its inception and cannot be validated by a later ratifcation and accordingly the proceedings initiated by one of the Directors without the resolution of the company was dismissed as not maintainable. In this context, I further make it clear that in terms of S. 142 of the Negotiable Instruments Act, another duly authorised complaint could be fled in time i.e. within one month from the date of cause of action. In this view of the matter, Ex. P-1, a letter of authorisation fled after one year

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cannot be taken as a proper ratifcation of the action initiated by P.W.

1. Because if it is taken that on the date of Ex. P-1, letter (fled after one year), a duly constituted complaint is fled, it would be barred by limitation of one month prescribed by S. 142 of the Negotiable Instruments Act. Moreover nothing prevented the complainant to withdraw the complaint himself voluntarily and fle another complaint with proper authorisation within the time permitted by S. 142 of the Act.

12. In A. C. Narayanan and Another Vs. State of Maharashtra and Others [Supra], the Appeal was against the order and issuance of process for the ofence punishable under Sections 138 and 142 of the N. I. Act. The relevant Paragraph No.26 reads as under :-

"26) While holding that there is no serious confict between the decisions in MMTC (supra) and Janki Vashdeo Bhojwani (supra), we clarify the position and answer the questions in the following manner:

(i) Filing of complaint petition under Section 138 of N.I Act through power of attorney is perfectly legal and competent.

(ii) The Power of Attorney holder can depose and verify on oath before the Court in order to prove the contents of the complaint.

However, the power of attorney holder must have witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the said transactions.

(iii) It is required by the complainant to make specifc assertion as to the knowledge of the power of attorney holder in the said transaction explicitly in the complaint and the power of attorney holder who has no knowledge regarding the transactions cannot be examined as a witness in the case.

(iv) In the light of Section 145 of N.I Act, it is open to the Magistrate to rely upon the verifcation in the form of afdavit fled by the complainant in support of the complaint under Section 138 of the N.I Act and the Magistrate is neither mandatorily obliged to call upon the complainant to remain present before the Court, nor to examine the complainant of his witness upon oath for taking the decision whether or not to issue process on the complaint under Section 138 of the N.I. Act.

(v) The functions under the general power of attorney cannot be delegated to another person without specifc clause permitting the same in the power of attorney. Nevertheless, the general power of attorney itself can be cancelled and be given to another person."

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13. In Milind Shripad Chandurkar Vs. Kalim M. Khan and Anr. [Supra], it is observed that, a person can maintain a complaint provided he is either a "payee" or "holder in due course" of the Cheque.

14. In Gamini aala Koteshwara Rao and Others Vs. State of Andhra Pradesh through Secretary [Supra], the principles in respect of the Appeal against acquittal are reiterated and it is observed that, it is open to the High Court to reappraise the evidence and conclusions drawn by the Trial Court but only in a case when the Judgment of the Trial Court is stated to be perverse.

15. As the matter at hand is in respect of the Complaint under the N. I. Act, the relevant provisions of the N. I. Act are considered below. Section 138 of the N. I. Act is in respect of dishonour of Cheque for insufficiency, etc. of funds in the account. Section 139 of the N. I. Act provides for the presumption in favour of holder. Section 118 of the N. I. Act is in respect of presumption as to negotiable instruments. It provides that, until the contrary is proved, the following presumption shall be made :

" [a] .... ..... .... .... .... ..... .... .... ..... [b] .... ..... .... .... .... ..... .... .... ..... [c] .... ..... .... .... .... ..... .... .... ..... [d] .... ..... .... .... .... ..... .... .... ..... [e] .... ..... .... .... .... ..... .... .... ..... [f] .... ..... .... .... .... ..... .... .... ..... [g] that holder is a holder in due course . - that the holder of a negotiable instrument is a holder in due course :

Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an ofence or fraud, or has been obtained from the maker or acceptor thereof by means of an ofence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him."

15.1 Section 142 of the N. I. Act is in respect of congnizance of ofence, which reads as under :

"142. Cognizance of ofences. - [1] Notwithstanding anything contained in the Code of Criminal Procedure, 1973 [2 ot 1974],

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[a] no Court shall take cognizance of any ofence punishable under section 138 except upon a complaint, in writing, made by the payee, or as the case may be, the holder in due course of the cheque ;

[b] such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138 ;

[Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfes the Court that he had sufcient cause for not making a complaint within such period; ]

[c] no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the frst class shall try any ofence punishable under section 138.

[2] .... ..... .... .... .... ..... .... .... ..... "

16. The Complaint is feld by the Appellant for the ofence punishable under Section 138 of the N. I. Act. Admittedly, he is not the payee or the holder of the Cheque in due course in personal capacity. According to the Complainant and the aspect, which is not in dispute that, Respondent No.1 was the dealer of the Corporation. The Appellant was working as the Deputy Manager [Retail] in the Corporation. According to the Complainant against the supply of lube by the Corporation to Respondent No.1, the above referred Cheque was issued by Respondent No.1, which came to be dishonoured. As per the Complaint, the Complainant issued the notice to Respondent No.1 and Respondent No.1 did not pay the amount nor replied the notice.

17. Admittedly, the Complaint and Affidavit of the Complainant are silent in respect of authorization by the Corporation, which was the payee, to the Complainant to fle the Complaint on its behalf. In the Affidavit, there is reference of the General Power of Attorney in favour of the Complainant. The said General Power of Attorney is at Exhibit -

46. The Complainant was cross-examined on behalf of Respondent No.1 in respect of the said Power of Attorney and it has come in the

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evidence of Complainant that, the General Power of Attorney was of the year h 2000 and the Complaint was fled on the basis of the said Power of Attorney. It has further come in the cross-examination of the Complainant that, pursuant to the said Power of Attorney of the year 2000, he was given or delegated the powers only in respect of the sale, purchase or lease of immovable property and no powers were delegated to take any legal action. It has further come in the cross- examination that, by the said Power of Attorney, no powers were delegated to recover the money and to fle the Criminal Complaint. It has further come in the cross-examination that, he did not inquired with Mr. Proshanto aanerjee, the Power of Attorney holder, whether the Company had authorized him or not. The cross-examination further shows that, the Complainant was not aware that, the resolution from the Company is required before taking any action against any person. In the cross-examination, it has come that, the Company was 'Juristic Person'. There is no evidence whether the Power of Attorney holder had any authority to delegate the powers to the other Officers of the Company, which were delegated to him by the Company. Admittedly, there is no resolution from the aoard of Directors of the Company in respect of authorization to fle the Complaint.

18. At Exhibit h 47, there is another General Power of Attorney dated 10/05/2005. The Complainant was cross-examined on this Power of Attorney. The Complainant admitted in the cross-examination that, it was not mentioned in Exhibit h 47 that, the powers could be delegated to any other persons. His cross-examination further shows that, the said Power of Attorney at Exhibit h 47, which was subsequent to fling of the Complaint, was placed on record on 28/11/2011. The Complainant admitted in cross-examination that, no ratifcation of the act / action prior to 28/11/2011 was done by virtue of Exhibit h 47. The learned Trial Court considered the date of fling of the Complaint and

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the date of execution of the subsequent General Power of Attorney dated 10/05/2005 and rightly observed that, no attempt was made to show the retrospective efect of the said General Power of Attorney. On the basis of Exhibit h 47, it is the contention on behalf of the Complainant that, there was ratifcation of the act of the Complainant of fling the Complaint. Reliance is placed on Section 196 of the said Act, which provides for ratifcation. The Section 196 of the said Act provides that, Where acts are done by one person on behalf of another, but without his knowledge or authority, he may elect to ratify or to disown such acts. If he ratifes them, the same efects will follow as if they had been performed by his authority. The said Section is under Chapter h X of the said Act, which deals with Agency. Section 198 of the said Act provides that, no valid ratifcation can be made by a person whose knowledge of the facts of the case is materially defective.

19. The core principle of ratifcation is one by which a person approves of the act of another knowing about the act. Coming to the case at hand, there is absolutely no evidence that, the General Power of Attorney holder was aware of the factual aspects of the matter. Admittedly, there is no resolution from the aoard of Directors of the Corporation ratifying the Complainant's act of fling the Complaint. In absence of any evidence to establish the ratifcation of the Complainant's act, the contention in respect of ratifcation melts down. Even if the Exhibit h 47 is accepted, it does not come to the rescue of Appellant.

20. It has further come in the cross-examination of the Complainant that, he was not the daily visitors to the Company Depot at ahadli and when he visited the said Depot, he did not examine the record therein. Further cross-examination of the Complainant shows that, the Company had given credit facility to Respondent No.1. The Complainant admitted that, to give the facility to make payment by

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Cheque, prior permission from the Company was required. To the question whether he had sought any such permission from the Company while accepting the Cheque from Respondent No.1, the Complainant replied that, there was no such need. The Complainant was unable to tell as to how much material was supplied to Respondent No.1 and the Cheques were accepted against the said supply. He did not know that, the Company accepts the blank Cheques as security. He admitted that, it was not within his knowledge as to whom the Cheque was given and it was in whose custody till the Complaint was fled. From his cross-examination, it is clear that, the Complainant was not aware of all the factual aspect of the matter.

21. On the aspect of notice, which was sent to Respondent No.1, the cross-examination of the Complainant shows that, it was sent by Mr. Rathod, who was looking after the work of Supply Department. The cross-examination shows that, no Power of Attorney was executed in favour of Mr. Rathod to issue notice below Exhibit h 50 and the said Mr. Proshanto aanerjee had not given the powers to Mr. Rathod. The Complainant admitted that, the Complaint was fled pursuant to the notice below Exhibit h 50. From this, it is clear that, notice Exhibit h 50 was sent by one Mr. Rathod having no authority or powers to do so.

22. The Judgment in M/s TRL Krosaki Refractories Ltd. Vs. M/s SMS Asia Private Limited and Anr. [Supra], pressed into service by the learned Advocate for the Appellant, substantially difers on the factual aspects. In the case at hand, the Complainant is not the Corporation. The Complainant, who was working with the Corporation, failed to establish that, he was authorized to fle the Complaint against Respondent No.1. The learned Trial Court has observed that, to show legal liability, no document was placed on record and observed that initial burden lies on the Complainant to show that there exists some transactions between the Complainant Company and Respondent

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No.1. The learned Trial Court has rightly observed that, the defence of Respondent No.1 was probable that she did not receive any material from the Complainant. On the basis of evidence on record and the defence, Respondent No.1 had rebutted the presumption. The learned Trial Court has rightly considered the aspects of rebutting the presumption.

23. The Complaint do not qualify the legal requirement essential as per the above referred provisions of the N. I. Act. As regards the contention that, Respondent No.1 sought time in the connected Appeal to pay the money, the same will not amount to curing the defects in the Complaint. The said Act of Respondent No.1 to seek time to pay the amount to the Appellant can, at the most, be said to be his endeavour to settle the matter. The learned Trial Court has considered all the aspects of the matter. The fndings recorded by the learned Trial Court are based on the material / evidence available on record. As fundamentally the Complaint is defective, the impugned Judgment and Order do not call for any interference. The conclusion drawn and reached by the learned Trial Court is the only conclusion, which is possible and legally sustainable and, therefore, the Appeal is liable to be dismissed. Hence, the following order :