Whether the court can dismiss the complaint about the dishonour of cheque if an officer of Co-operative society was not duly authorized to give evidence?

When the Complainant's witness the said Shirodkar was cross-examined on the said Resolution/Authority letter, the Complainant's witness admitted that the said Resolution authorised him to attend Court cases and not to depose on oath. It is contended by learned Counsel on behalf of the accused that this point was raised before both the Courts below. The learned J.M.F.C., merely observed that the Complainant produced on record true extract of the Resolution authorising Gaurish Shirodkar to attend the Court on behalf of the Society. There is no whisper about the said Resolution/Letter of Authority in the Judgment of the learned Appellate Court, which otherwise also is very cryptic. The said Resolution did not authorise the said Gaurish P. Shirodkar, the recovery officer of the Complainant-Co-operative Society, either to file a complaint on behalf of the Complainant, which is a separate legal entity or to depose in support of the Complainant. A complaint under Section 142 of the Act can be filed either by the payee or the holder in due course. The Complainant-Co-operative Society was the payee in his case and the complaint was filed in its name. The authority produced did not sufficiently authorise Shri G. P. Shirodkar either to file the complaint or to depose in support thereof. The Complainant was not sufficiently represented before the Court. Therefore, it could not be said that the complaint filed or the evidence given in support thereof was in accordance with Section 142 of the Act, which requires that the complaint has to be made by the payee or, as the case may be, by the holder in due course of the cheque. In the absence of any Power of Attorney or a valid authority by the Complainant in favour of the said Recovery Officer, the complaint itself could not have been entertained and conviction based on such a complaint, is liable to be set aside.

IN THE HIGH COURT OF BOMBAY AT GOA

C.R.A. No. 32 of 2006

Decided On: 04.10.2006

 Alka Toraskar  Vs.  The Vaishya Urban Co-op. Credit Society Ltd. and Ors.

Hon'ble Judges/Coram:

N.A. Britto, J.

Citation: MANU/MH/1097/2006,2007 CRLJ 858, 2006(6) ALLMR 397

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Whether partner of firm can file complaint U/S 138 of NI Act and depose on behalf of partnership firm?

 From the above provisions of the Act, it is clear that every partner is an agent of the Firm and his other partners for the purpose of business of the firm and the acts of every partner bind the firm and his partners, unless, of course, the partner had, in fact no authority to act for the firm and his other partners. The learned trial Magistrate relied upon the judgment of this Court in the case of (Mrs. Alka Toraskar Vs. State of Goa and others), 2007 (1) Goa L.T. 159 which pertains to a Cooperative Society. The trial Magistrate further relied upon (Fragrant Leasing and Finance Co. Ltd. Vs. Jagdish Katuria),MANU/UP/1085/2007 : 2008 All M.R. (Cri.) Journal 3 and the judgment in the case of (Chico Ursula D'Souza Vs. Goa Plast Pvt. Ltd.), reported inMANU/MH/1085/2008 : 2008 (6) Bom. C.R. 399 : 2009 (1) All M.R. 290, both of which pertain to company. Admittedly, a Company is a separate juristic person distinct from its directors or shareholders and the company acts through the resolution passed by the Board of Directors. Because of the above, a person, who claims to represent another, is bound to produce an authority or power which entitles him to appear. The above is not the case with the Partnership Firm. As has been already seen above, each partner is an agent of the Firm. In the present case, it is not that some person on the strength of power of attorney had filed a complaint and had deposed on behalf of the complainant. In the present case, the complaint was not filed by PW 1, but it was filed by the Firm, through PW 1, as partner of that Firm. The person, who deposed on behalf of the complainant, was one of the partners of the said complainant-Firm. In fact, the agreement dated 5/4/2005 was signed by same partner Shri Pandharinath Chafadkar (PW 1) for himself and as attorney of the other two partners Arun Chafadkar and Narayan Nigalye. In the circumstances above, the finding of the trial Magistrate that there was no authority to PW 1 to file the complaint or to depose on behalf of the complainant is not correct.

IN THE HIGH COURT OF BOMBAY

Criminal Revision Application No. 17 of 2014

Decided On: 02.04.2014

 Reshmi Constructions  Vs.   Laxman Vithal Chunekar

Hon'ble Judges/Coram:U.V. Bakre, J.

 Citation: 2014(2)BomCR(Cri)297,2014(5)MHLJ 537

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