Sunday, 4 September 2016

Whether it is necessary to examine person passing resolution authorizing filing complaint of dishonour of cheque?

 
 The learned counsel for the appellant submitted that,
that the complaint had not been filed by an authorized officer or
person, was not correct.  He pointed out that the resolution passed
by the complainant bank authorizing the said Hindurao Kumbhar
was filed before the Magistrate, and that, the resolution clearly
authorized the said Hindurao  Kumbhar to  file a complaint on
behalf of the  complainant bank.
This   submission   of   the   learned   counsel   for   the
applicant appears to be proper.   The Magistrate's reasoning that
the resolution had not been proved because the same had been
passed in the absence of the said Hindurao Kumbhar, and that, he
had no personal knowledge about the said resolution is not sound.
The Magistrate's view that some of the persons who passed the

resolution ought to have been examined, is not correct.  
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.920 OF 2013
WITH
CRIMINAL APPLICATION NO.472 OF 2013
IN
CRIMINAL APPEAL NO.920 OF 2013
THE KARAD URBAN CO­OPERATIVE BANK  )
LIMITED )...APPELLANT
V/s.
SUNIL LAXMAN DALVI AND ANR. )...RESPONDENTS

CORAM : ABHAY M. THIPSAY, J.
DATE : 15th DECEMBER 2015.
Citation:2016(4) MHLJ 577



1 The appellant is a co­operative bank.   It had filed a
complaint against respondent no.1 herein alleging commission of
an   offence   punishable   under   Section   138   of   the   Negotiable
Instruments Act (N.I.Act).   The Judicial Magistrate First Class,

Karad, after holding a trial, held respondent no.1 not guilty and
passed an order of acquittal.  Being aggrieved by the said order of
acquittal, the appellant has, after obtaining special leave of this
court, filed the present appeal.
2 During the pendency of the appeal, the appellant has
also   filed   an   application   praying   that   additional   evidence,   as
contemplated   under   Section   391   of   the   Code   of   Criminal
Procedure (Code), be directed to be taken.   It was decided that
this application for a direction to  take additional evidence, be also
considered along with the appeal.
3 Respondent No.1 did not remain present at the time of
final   hearing   of   the   appeal,   inspite   of   notice,   and   inspite   of
granting him repeated opportunities to be present.  The appeal, as
well   as   the   application   for   further   evidence   to   be   taken   is,
therefore, being decided, after hearing the learned counsel for the
appellant   and   the   learned   APP;   and   after   going   through   the
relevant record and proceedings.

4 I have heard Mr.Shekhar Jagtap, the learned counsel for
the   appellant.     With   his   assistance,   I   have   gone   through   the
impugned   judgment,   the   complaint,   and   the   notes   of   evidence
adduced during the trial, which are annexed to the appeal memo.
5 For the sake of convenience and clarity, the appellant
shall hereinafter be referred to as “the complainant” and respondent
no.1 as “the accused.”  
6 The case of the complainant was that, in repayment of
the   loan   taken   by   the   accused   from   the   complainant   bank,   the
accused had issued a cheque in the sum of Rs.5 Lac, which was
dishonoured, and that, inspite of making a demand for the amount
of the said cheque, the same was not paid.  
7 One   Hindurao   Kumbhar,   authorized   Officer   of   the
complainant bank, was examined as a witness during the trial.  No
other witness was examined by or on behalf of the complainant.  The
accused also did not examine himself on oath or lead any evidence
in defence.  

8 The   order   of   acquittal   was   passed   by   the   learned
Magistrate mainly on two grounds.   The Magistrate was of the
view, firstly, that the authority of the said Hindurao Kumbhar to
file   a   complaint   on   behalf   of   the   complainant   bank,   was   not
satisfactorily proved.  He was of the view that since the complaint
had not been filed by a person duly authorized by the payee i.e.
the   complainant   bank,   the   complaint   was   not   maintainable.
Secondly,   the   Magistrate   held   that,   that   the   cheque   had   been
issued in discharge of a legally enforceable debt or other liability,
had also not been proved.  
9 The learned counsel for the appellant submitted that,
that the complaint had not been filed by an authorized officer or
person, was not correct.  He pointed out that the resolution passed
by the complainant bank authorizing the said Hindurao Kumbhar
was filed before the Magistrate, and that, the resolution clearly
authorized the said Hindurao  Kumbhar to  file a complaint on
behalf of the  complainant bank.

10 This   submission   of   the   learned   counsel   for   the
applicant appears to be proper.   The Magistrate's reasoning that
the resolution had not been proved because the same had been
passed in the absence of the said Hindurao Kumbhar, and that, he
had no personal knowledge about the said resolution is not sound.
The Magistrate's view that some of the persons who passed the
resolution ought to have been examined, is not correct.  
11 However, the other finding recorded by the Magistrate
– i.e., that 'the complainant had failed to prove that the cheque in
question was issued in discharge of a legally enforceable debt or
other liability' appears to be correct.
12 Interestingly,   the   complaint   merely   states   that  the
accused had issued the cheque in repayment of the loan  without
giving any particulars of the loan.  The complaint does not give any
details as to when the amount of loan was disbursed.  It does not
even give the amount of loan that was given to the accused. In the
affidavit of his evidence in lieu of examination­in­chief also, the

witness for the complainant, did not give these details.   On the
contrary, he admitted that he did not know about these details.
13 In the cross­examination of the complainant's witness,
he admitted that, usually, when a cheque is given for repayment of
a loan, the (loan) account number of the debtor is written on the
reverse of the cheque.  He admitted that, in the instant case, such
account number  was not written.   Inspite  of  repeatedly  being
questioned in the cross­examination, he could not give the loan
account number of the accused, while admitting that such loan
account number ought to be there, if the accused had been given a
loan.  
14 In the cross­examination of the complainant's witness,
he admitted that proceedings had been filed against the accused
in the Co­operative court and some award had been obtained from
the Co­operative court.   He also admitted that the accused had
deposited some amount in the loan account.   He, however, was
unable to state how much amount had been deposited by the

accused in the loan account and / or how much loan amount had
already been satisfied on 25th  February 2005, i.e.,   the date on
which the cheque was supposedly issued.  The witness also stated
that he  did not have any record or account  to show how much
amount was due and payable by the accused to the complainant on
25th February 2005.
15 The   accused   had   taken   a   defence   that   he   had
previously obtained loan from the complainant bank which had
been  repaid.   These  facts were admitted by  the  complainant's
witness in his cross­examination.   The case of the accused was
that, a cheque given by him to the complainant at that time, as
and by way of security, had been misused, and the accused was
wrongly being prosecuted with respect to an offence punishable
under Section 138 of the N.I.Act.
16 In   light   of   the   fact   that   the   complainant   had
scrupulously avoided giving any details, whatsoever, of the loan
allegedly   obtained   by   the   accused,   and   the   admission   of   the

complainant's   witness   that   he   did   not   have   such   details,   the
defence of the accused was certainly plausible.  The Magistrate's
conclusion,   that   the   accused   had   successfully   rebutted   the
presumption created by Section 139 of the N.I.Act, was proper
and legal.
17 The   question   that   now   remains   is,   whether   the
appellant should now be permitted to adduce further evidence as
contemplated under Section 391 of the Code.  I have specifically
heard   the   learned   counsel   for   the   appellant   on   this   aspect.
Interestingly, the new evidence that is sought to be adduced is the
award passed by the Co­operative court.   Inspite of specifically
questioning, the learned counsel for the appellant did not say that he
wanted to produce the statement of the loan account of the accused
by way of additional evidence. 
18 The   award   would   show   the   opinion   of   the   Cooperative
court.  The decision rendered by the Co­operative court
would not be admissible or even relevant in the proceedings that

were before the Magistrate.  The law regarding the relevancy of
judgments delivered by the courts is found in Sections 40 to 44 of
the Evidence Act.    The judgment delivered by the Co­operative
court or the award passed by it is not even relevant in the context
of the proceedings that were before the Magistrate.  
19 As such, I do not find any merit in the application for
permitting the appellant to adduce further evidence in the matter.
20 The judgment and order of acquittal, as passed by the
Magistrate, is proper and legal.  There is no merit in the appeal.
21 The appeal, as well as Criminal Application No.472 of
2013, are both dismissed.
(ABHAY M. THIPSAY, J.)


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