Entertainment Society of Goa vs Ritza Wine Pvt. Ltd. and Others

N.A. Britto, J.—Heard learned Counsel on behalf of both parties. The complainant has filed the present application for leave to appeal against the acquittal of the accused u/s 138 of the Negotiable Instruments Act, 1881, vide judgment dated 29.1.2010.

There is no dispute that the complainant is a registered society, registered under the Societies Registration Act, 1860. The complaint was filed by Shri Nikhil Desai on behalf of the complainant-Society who was the complainant''s Acting CEO. The complaint was filed for a dishonour of a cheque dated 2.11.2006 for Rs. 6,00,000/- which when presented for payment was returned dishonoured for lack of insufficient funds and a legal notice sent to the accused was not complied with by the accused.

As said, the complaint was filed by Shri Nikhil Desai on behalf of the complainant-Society. The said Nikhil Desai was then replaced by Shri Venancio Furtado who had deposed on behalf of the complainant. The said Venancio Furtado was the General Manager.

The learned trial Court, acquitted the accused, inter alia, on the ground that the said Venancio Furtado who was the General Manager of the complainant had admitted that the complainant was a registered Society and he had not produced any authorization to depose in the case. It appears that reliance was placed on a decision of the Delhi High Court in the case of Bhasin Credit Aid Ltd. v. Raj Kumar, 133 (2006) DLT 383 : 2007 Cr.LJ. 1377 in support of the submission that the said Venancio Furtado being the General Manager did not require any special authorization. However, the learned J.M.F.C. relying on the case of Alka Toraskar v. The Vaishya Urban Co-op. Credit Society Ltd., 2006 (2) Bom. C.R.(Cri) 717, as well as on the case of The Goa State Co-op. Bank Ltd. v. M/s. Kurtarkar Traders. unreported decision in Criminal Appeal Nos. 35,50 and 55 of 2009 dismissed the complaint on the ground that Venancio Furtado had not even produced his appointment letter to show that he was the General Manager of the complainant-Society much less his power of attorney or his valid authorization from the Entertainment Society of Goa, and, therefore, the complaint should fail. After the dismissal of the complaint, the complainant has filed an application dated 20.12.2010 to produce Order dated 13.11.2009 by which the said Venancio Furtado was transferred and posted as a General Manager of the complainant''s Society.

It is the contention of Mr. R. Almeida, learned Counsel appearing on behalf of the complainant, that the said order dated 13.11.2009 was not produced under a bona fide belief that the same was not required before the Court to be produced in view of the Judgment of this Court in the case of Central Bank of India Vs. Tarseema Compress Wood Manufacturing Company and others., . Here, it may be stated that, in that case this Court had noted that PW1/N. R. Koramne who was the manager of the concerned Branch of the plaintiff-Bank had given evidence on the basis of the documents. It was therefore held that anybody could come and give evidence in Court provided that he is acquainted with the facts of the case. At the same time it was clearly stated that a power of attorney or authorization would be required for filing the plaint or signing the plaint or signing a written statement. (Emphasis supplied).

On the other hand, Mr. Ryan Menezes, learned Counsel appearing on behalf of respondent No. 1, submits that there was no reason for the complainant not to have produced the said Order dated 13.11.2009. Learned Counsel submits that the explanation that was not produced due to bona fide belief cannot be accepted. Mr. Menezes has also placed reliance on the said case of Alka Toraskar v. Vaishya Urban Co-op. Credit Society Ltd. and Another (supra) as well as Shri Ashok Bampto Pagui Vs. Agencia Real Canacona Pvt. Ltd. and State, , The Goa State Co-op. Bank Ltd. v. M/s. Kurtarkar Traders (supra) as well as the case of Mamatadevi v. Vijaykumar Mamraj Agrawal, III (2008) CCR 129=2008 All MR (Cri) 442). Reliance is also placed on Mr. Chico Ursula D ''Souza v. M/s. Goa Plast Pvt. Ltd., 2009 (1) All MR 290.

Even if the application for production of the said Order dated 13.11.2009 is allowed it cannot certainly cure the fundamental defect in the complaint which was filed by the said Nikhil Desai on behalf of the complainant-Society without any resolution passed by the complainant in his favour to file a complaint. Learned Counsel on behalf of the complainant would submit that the respondent/accused had not raised this point that the complaint was not filed in accordance with law.

In the case of Alka Toraskar v. Vaishya Urban Co-op. Credit Society Ltd. and Another (supra) on which reliance was he learned trial Court it was observed that a complaint u/s 142 of the Act can be filed either by the payee or holder in due course. The complainant-Co-op. Society was the payee in that case and the complaint was filed in its name. The authority produced did not sufficiently authorize 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. The said decision is squarely applicable to the facts of the case at hand.

In the case of Mr. Chico Ursula D''Souza v. M/s. Goa Plast Pvt. Ltd. (supra), this Court has again held that a person who claims to represent another is expected to produce an authority or power which entitles him to so appear. In the case of The Goa State Co-op. Bank Ltd. v. M/s. Kurtarkar Traders (supra), it was held that the complainant as a body corporate can act only by resolutions passed by the directors at its meeting. There was no resolution passed by the complainant in favour of its Managing Director authorizing him to appoint any person to prosecute the defaulters whose cheques bounced. Power to lodge complaints could have been given only by a resolution by the board of directors. There was none given and none was produced. It was further observed that in the case of Ashok Bampto Pagui v. Agencia Real Canacona Pvt. Ltd. (supra), a complaint even by a director of a company was not maintainable without a resolution by the board of directors.

In the case at hand, as already stated, the complainant is a Society registered under the Societies Registration Act, 1860 and had passed no resolution authorizing the said Nikhil Desai to lodge a complaint on its behalf, and therefore, the complaint filed by the complainant could not have been considered as a complaint, as required to be filed u/s 142 of the Negotiable Instruments Act, 1881. In this view of the matter, the complaint filed, was rightly dismissed. Consequently, I find there is no merit in both the applications, and accordingly the same are hereby dismissed.