Section 142(b) of the N. I. Act, provides that
notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974), no Court shall take cognizance of
any offence 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. In the case of “Dale &
Carrington Invt. (P) Ltd. and Anr. Vs. P. K. Prathapan and Ors.”,
reported in [(2005) 1 SCC 212], the Hon'ble Supreme court has
observed that the Company being a juristic person, acts through
its Directors who are collectively referred to as the Board of14
Directors. An individual Director has no power to act on behalf of
a company of which he is a Director, unless by some resolution of
the Board of Directors of the company specific power is given to
him/her. In the present case, the complaint had been filed by the
company and was signed by Shri Tukaram Parab as constituted
attorney of the complainant. Section 54 of the Act provides that
save as otherwise expressly provided in this Act, a document or
proceeding requiring authentication by a company may be
signed by a director, the managing agent, the secretary or other
authorised officer of the company, and need not be under its
common seal. Thus, if as contended by learned counsel for the
complainant, what is produced as Exhibit 44 is just a true extract
of the resolution, then it could have been held to be legal. But
that is not the case. In his affidavit-in-evidence, Shri Tukaram
Parab (PW1) stated that he was the constituted attorney of the
complainant and had signed the complaint on behalf of the
complainant. In his examination-in-chief, inter alia, he stated
that he was producing the Board Resolution dated 12.12.2011.
What had been produced on record at Exhibit 44 was a notarised
copy of the Board Resolution, itself, passed at the meeting of
Board of Directors on 12.12.2011 and not any extract of the
Board Resolution. From the deposition of PW1, it can be seen
that the original of the said Board Resolution was shown to the
trial court and it was returned back to the PW1 and notarised
copy of the same was taken on record and marked as Exhibit 44.
Therefore, the said document named as Board Resolution was
not covered by Section 54 of the Act. By this Board Resolution at
Exhibit 44, the Director Mr. Chandrakant K. Gawas on behalf of
the complainant resolved that he himself as Managing Director
was authorised to execute power of attorney in favour of the
Consultant Mr. Tukaram Parab authorising him to represent the
Company in the Court of J.M.F.C. at Vasco and all other Courts
and to take all such steps as may be found to be in the interest
of the Company. In his cross-examination, PW1 deposed that
Chandrakant Gawas was the Managing Director of the
complainant and the other Director was Chitra Chandrakant
Gawas. Hence, there were only two Directors but only one of
them had signed the Board Resolution at Exhibit 44.
12. (a).- Section 193 of the Act provides as under:-
“193. Minutes of proceedings of general meetings
and of Board and other meetings.
(1) Every company shall cause minutes of all
proceedings of every general meeting and of all
proceedings of every meeting of its Board of
directors or of every committee of the Board, to be
kept by making within thirty days of the conclusion
of every such meeting concerned, entries thereof16
in books kept for that purpose with their pages
consecutively numbered.
(1A) Each page of every such book shall be
initialled or signed and the last page of the record
of proceedings of each meeting in such books shall
be dated and signed-
(a) in the case of minutes of proceedings of a
meeting of the Board or of a committee thereof,
by the chairman of the said meeting or the
chairman of the next succeeding meeting;
(b) in the case of minutes of proceedings of a
general meeting, by the chairman of the same
meeting within the aforesaid period of thirty days
or in the event of the death or inability of that
chairman within that period, by a director duly
authorised by the Board for the purpose.
(1B) In no case the minutes of proceedings of a
meeting shall be attached to any such book as
aforesaid by pasting or otherwise.
(2) The minutes of each meeting shall contain a
fair and correct summary of the proceedings
thereat.
(3) All appointments of officers made at any of the
meetings aforesaid shall be included in the
minutes of the meeting.
(4) In the case of a meeting of the Board of
directors or of a committee of the Board, the
minutes shall also contain-
(a) the names of the directors present at the
meeting; and
(b) in the case of each resolution passed at the
meeting, the names of the directors, if any,
dissenting from, or not concurring in, the
resolution.
(5) Nothing contained in sub-sections (1) to (4)
shall be deemed to require the inclusion in any
such minutes of any matter which, in the opinion
of the chairman of the meeting-
(a) is, or could reasonably be regarded as,
defamatory of any person;
(b) is irrelevant or immaterial to the proceedings;
or
(c) is detrimental to the interests of the company.
Explanation.- The chairman shall exercise an17
absolute discretion in regard to the inclusion or
non-inclusion of any matter in the minutes on the
grounds specified in this sub- section.
(6) If default is made in complying with the
foregoing provisions of this section in respect of
any meeting, the company, and every officer of
the company who is in default, shall be punishable
with fine which may extend to[ five hundred
rupees.”
(b).- Section 194 of the Act provides as under:-
“194.
Minutes to be evidence-- Minutes of meetings
kept in accordance with the provisions of section
193 shall be evidence of the proceedings recorded
therein.”
(c).- Section 195 of the Act provides as under:-
“195. Presumptions to be drawn where minutes
duly drawn and signed- Where minutes of the
proceedings of any general meeting of the
company or of any meeting of its Board of
directors or of a committee of the Board [have
been kept in accordance with the provisions of
section 193], then, until the contrary is proved, the
meeting shall be deemed to have been duly called
and held, and all proceedings thereat to have duly
taken place, and in particular, all appointments of
directors or liquidators made at the meeting shall
be deemed to be valid.”
(d).- Section 287 of the Act provides as under:-
“287. Quorum for meetings.
(1) In this section-
(a) "total strength" means the total strength of the
Board of directors of a company as determined in
pursuance of this Act, after deducting therefrom
the number of the directors, if any, whose places
may be vacant at the time; and18
(b) "interested director" means any director whose
presence cannot, by reason of section 300, count
for the purpose of forming a quorum at a meeting
of the Board, at the time of the discussion or vote
on any matter.
(2) The quorum for a meeting of the Board of
directors of a company shall be one-third of its
total strength (any fraction contained in that onethird
being rounded off as one), or two directors,
whichever is higher:
Provided that where at any time the number
of interested directors exceeds or is equal to twothirds
of the total strength, the number of the
remaining directors, that is to say, the number of
the directors who are not interested, present at
the meeting being not less than two, shall be the
quorum during such time.”
13. From the above provisions of the Act, it is clear that in the
absence of minutes of proceedings of the meetings under
Section 193 of the Act, authorising Shri Tukaram Parab, the
Consultant, to file complaint and to depose on behalf of the
complainant or authorising Shri Chandrakant Gawas to execute
power of attorney in favour of Tukaram to do all such acts, it
could not be said that there was such an authorisation. There is
presumption in respect of such minutes and the minutes are
presumed to be true and onus lies heavily on the party asserting
that they are not correct. In the present case admittedly,
certified true copy of the minutes of the meeting dated
12.12.2011 were not produced on record. The Special Power of
Attorney at Exhibit 45 was also executed by the said Managing
Director namely Chandrakant Gawas and not be both the
Directors. The said Power of Attorney was executed in view of a
resolution being adopted by the company authorising the
Managing Director Shri Chandrakant Gawas to appoint a
constituted attorney on behalf of the company. But as already
stated above, the said resolution at Exhibit 44 was not adopted
by both the Directors but by a single Director. Hence, the said
Special Power of Attorney was also not sufficient to authorise Shri
Tukaram Parab to institute the complaint and to depose on behalf
of the complainant. Since in terms of Section 287(2) of the Act,
as quoted above, which prescribes the quorum for the meeting of
Board of Directors, the required quorum in the present case was
two and since only one Director had adopted the said resolution
and consequently executed the Power of Attorney, it could not be
said that the complaint was filed by the company i.e. “payee” or
by “holder in due course” of the cheque. In terms of Section
142 of the N. I. Act, a complaint is bound to be filed by payee or
as the case may be holder in due course of the cheque,
notwithstanding anything contained in the Code of Criminal
Procedure. Hence, the complaint had to be filed by the company
and since it was not proved that Chandrakant Gawas was the
authorised person of the complainant to file the complaint, the
complaint itself was not maintainable.
IN THE HIGH COURT OF BOMBAY AT GOA.
CRIMINAL REVISION APPLICATION NO. 21 OF 2014.
M/S. SHRADHA SHIPPING CO. PVT. LTD. Vs M/S. ADHITHRI TRADING COMPANY,
CORAM :- U. V. BAKRE, J.
Date:- 25thNovember, 2014.
Citation;2015 CRLJ(NOC)483 BOM
Print Page
notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974), no Court shall take cognizance of
any offence 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. In the case of “Dale &
Carrington Invt. (P) Ltd. and Anr. Vs. P. K. Prathapan and Ors.”,
reported in [(2005) 1 SCC 212], the Hon'ble Supreme court has
observed that the Company being a juristic person, acts through
its Directors who are collectively referred to as the Board of14
Directors. An individual Director has no power to act on behalf of
a company of which he is a Director, unless by some resolution of
the Board of Directors of the company specific power is given to
him/her. In the present case, the complaint had been filed by the
company and was signed by Shri Tukaram Parab as constituted
attorney of the complainant. Section 54 of the Act provides that
save as otherwise expressly provided in this Act, a document or
proceeding requiring authentication by a company may be
signed by a director, the managing agent, the secretary or other
authorised officer of the company, and need not be under its
common seal. Thus, if as contended by learned counsel for the
complainant, what is produced as Exhibit 44 is just a true extract
of the resolution, then it could have been held to be legal. But
that is not the case. In his affidavit-in-evidence, Shri Tukaram
Parab (PW1) stated that he was the constituted attorney of the
complainant and had signed the complaint on behalf of the
complainant. In his examination-in-chief, inter alia, he stated
that he was producing the Board Resolution dated 12.12.2011.
What had been produced on record at Exhibit 44 was a notarised
copy of the Board Resolution, itself, passed at the meeting of
Board of Directors on 12.12.2011 and not any extract of the
Board Resolution. From the deposition of PW1, it can be seen
that the original of the said Board Resolution was shown to the
trial court and it was returned back to the PW1 and notarised
copy of the same was taken on record and marked as Exhibit 44.
Therefore, the said document named as Board Resolution was
not covered by Section 54 of the Act. By this Board Resolution at
Exhibit 44, the Director Mr. Chandrakant K. Gawas on behalf of
the complainant resolved that he himself as Managing Director
was authorised to execute power of attorney in favour of the
Consultant Mr. Tukaram Parab authorising him to represent the
Company in the Court of J.M.F.C. at Vasco and all other Courts
and to take all such steps as may be found to be in the interest
of the Company. In his cross-examination, PW1 deposed that
Chandrakant Gawas was the Managing Director of the
complainant and the other Director was Chitra Chandrakant
Gawas. Hence, there were only two Directors but only one of
them had signed the Board Resolution at Exhibit 44.
12. (a).- Section 193 of the Act provides as under:-
“193. Minutes of proceedings of general meetings
and of Board and other meetings.
(1) Every company shall cause minutes of all
proceedings of every general meeting and of all
proceedings of every meeting of its Board of
directors or of every committee of the Board, to be
kept by making within thirty days of the conclusion
of every such meeting concerned, entries thereof16
in books kept for that purpose with their pages
consecutively numbered.
(1A) Each page of every such book shall be
initialled or signed and the last page of the record
of proceedings of each meeting in such books shall
be dated and signed-
(a) in the case of minutes of proceedings of a
meeting of the Board or of a committee thereof,
by the chairman of the said meeting or the
chairman of the next succeeding meeting;
(b) in the case of minutes of proceedings of a
general meeting, by the chairman of the same
meeting within the aforesaid period of thirty days
or in the event of the death or inability of that
chairman within that period, by a director duly
authorised by the Board for the purpose.
(1B) In no case the minutes of proceedings of a
meeting shall be attached to any such book as
aforesaid by pasting or otherwise.
(2) The minutes of each meeting shall contain a
fair and correct summary of the proceedings
thereat.
(3) All appointments of officers made at any of the
meetings aforesaid shall be included in the
minutes of the meeting.
(4) In the case of a meeting of the Board of
directors or of a committee of the Board, the
minutes shall also contain-
(a) the names of the directors present at the
meeting; and
(b) in the case of each resolution passed at the
meeting, the names of the directors, if any,
dissenting from, or not concurring in, the
resolution.
(5) Nothing contained in sub-sections (1) to (4)
shall be deemed to require the inclusion in any
such minutes of any matter which, in the opinion
of the chairman of the meeting-
(a) is, or could reasonably be regarded as,
defamatory of any person;
(b) is irrelevant or immaterial to the proceedings;
or
(c) is detrimental to the interests of the company.
Explanation.- The chairman shall exercise an17
absolute discretion in regard to the inclusion or
non-inclusion of any matter in the minutes on the
grounds specified in this sub- section.
(6) If default is made in complying with the
foregoing provisions of this section in respect of
any meeting, the company, and every officer of
the company who is in default, shall be punishable
with fine which may extend to[ five hundred
rupees.”
(b).- Section 194 of the Act provides as under:-
“194.
Minutes to be evidence-- Minutes of meetings
kept in accordance with the provisions of section
193 shall be evidence of the proceedings recorded
therein.”
(c).- Section 195 of the Act provides as under:-
“195. Presumptions to be drawn where minutes
duly drawn and signed- Where minutes of the
proceedings of any general meeting of the
company or of any meeting of its Board of
directors or of a committee of the Board [have
been kept in accordance with the provisions of
section 193], then, until the contrary is proved, the
meeting shall be deemed to have been duly called
and held, and all proceedings thereat to have duly
taken place, and in particular, all appointments of
directors or liquidators made at the meeting shall
be deemed to be valid.”
(d).- Section 287 of the Act provides as under:-
“287. Quorum for meetings.
(1) In this section-
(a) "total strength" means the total strength of the
Board of directors of a company as determined in
pursuance of this Act, after deducting therefrom
the number of the directors, if any, whose places
may be vacant at the time; and18
(b) "interested director" means any director whose
presence cannot, by reason of section 300, count
for the purpose of forming a quorum at a meeting
of the Board, at the time of the discussion or vote
on any matter.
(2) The quorum for a meeting of the Board of
directors of a company shall be one-third of its
total strength (any fraction contained in that onethird
being rounded off as one), or two directors,
whichever is higher:
Provided that where at any time the number
of interested directors exceeds or is equal to twothirds
of the total strength, the number of the
remaining directors, that is to say, the number of
the directors who are not interested, present at
the meeting being not less than two, shall be the
quorum during such time.”
13. From the above provisions of the Act, it is clear that in the
absence of minutes of proceedings of the meetings under
Section 193 of the Act, authorising Shri Tukaram Parab, the
Consultant, to file complaint and to depose on behalf of the
complainant or authorising Shri Chandrakant Gawas to execute
power of attorney in favour of Tukaram to do all such acts, it
could not be said that there was such an authorisation. There is
presumption in respect of such minutes and the minutes are
presumed to be true and onus lies heavily on the party asserting
that they are not correct. In the present case admittedly,
certified true copy of the minutes of the meeting dated
12.12.2011 were not produced on record. The Special Power of
Attorney at Exhibit 45 was also executed by the said Managing
Director namely Chandrakant Gawas and not be both the
Directors. The said Power of Attorney was executed in view of a
resolution being adopted by the company authorising the
Managing Director Shri Chandrakant Gawas to appoint a
constituted attorney on behalf of the company. But as already
stated above, the said resolution at Exhibit 44 was not adopted
by both the Directors but by a single Director. Hence, the said
Special Power of Attorney was also not sufficient to authorise Shri
Tukaram Parab to institute the complaint and to depose on behalf
of the complainant. Since in terms of Section 287(2) of the Act,
as quoted above, which prescribes the quorum for the meeting of
Board of Directors, the required quorum in the present case was
two and since only one Director had adopted the said resolution
and consequently executed the Power of Attorney, it could not be
said that the complaint was filed by the company i.e. “payee” or
by “holder in due course” of the cheque. In terms of Section
142 of the N. I. Act, a complaint is bound to be filed by payee or
as the case may be holder in due course of the cheque,
notwithstanding anything contained in the Code of Criminal
Procedure. Hence, the complaint had to be filed by the company
and since it was not proved that Chandrakant Gawas was the
authorised person of the complainant to file the complaint, the
complaint itself was not maintainable.
IN THE HIGH COURT OF BOMBAY AT GOA.
CRIMINAL REVISION APPLICATION NO. 21 OF 2014.
M/S. SHRADHA SHIPPING CO. PVT. LTD. Vs M/S. ADHITHRI TRADING COMPANY,
CORAM :- U. V. BAKRE, J.
Date:- 25thNovember, 2014.
Citation;2015 CRLJ(NOC)483 BOM
