Shradha Shipping Co. Pvt. Ltd. vs Adhithri Trading Company

U.V. Bakre, J.—This revision application is directed against the judgment and order dated 11.12.2013 passed by the learned Additional Sessions Judge, FTC-II Margao, ("Appellate Court", for short) in Criminal Appeal No. 61/2013.

The said Criminal Appeal No. 61/2013 was, in turn, filed against the judgment, order and sentence dated 17.4.2013 passed by the learned Judicial Magistrate, First Class, ''B'' Court Vasco (''J.M.F.C.'', for short) in Criminal Case No. 113/OA/NIA/2011/B. Applicant was the complainant whereas respondents were the accused in the said Criminal Case. The parties shall hereinafter be referred to as per their status in the said Criminal Case.

The complainant had filed a complaint against the accused persons for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (''N.I. Act'', for short) which gave rise to the said Criminal Case. The case of the complainant, in short, was as follows:-

Complainant was a company engaged in the business of operating barges for transportation of mineral ore and it also gave its barges on hire to interested operators. The accused no. 2 was engaged in the business of transportation of mineral ore and carried on business under the name and style as M/s. Adithri Trading Company i.e. accused no. 1. Accused no 2 was the sole proprietor of accused no. 1. The accused took on hire a barge of the complainant by name M.V. Shri Rashtroli. Initially, the accused engaged the said barge for M/s. Omkar Logistics and made two trips. The accused guaranteed payment of freight charges for the said two trips and requested the complainant to raise invoices in the name of M/s. Omkar Logistics, to which the complainant agreed. Thereafter the accused operated the said barge for their own business. The complainant raised two invoices in the name of M/s. Omkar Logistics and six invoices in the name of the accused no. 1 (with details as mentioned in paragraph 4 of the complaint). The accused made payments against running account and an amount of Rs. . 16,50,493/- was paid by cheques and RTGS mode of payment was effectively realized. Thereafter the accused made further payment of Rs. . 25,00,000/- by cheque bearing no. 524141 dated 15.10.2011 drawn on UCO Bank, Vasco-da-Gama, Goa on account. The said cheque when presented was returned dishonoured on 10.11.2011 with the remark "payment stopped by the drawer". By a legal notice dated 22.11.2011, the complainant called upon the accused to make the payment of the cheque amount within 15 days, from the date of receipt of notice. The said notice was duly received by the accused on 25.11.2011 but they did not make payment and on the contrary sent a reply dated 07.12.2011 inter alia making false allegations against the complainant and denying the liability. Hence the complaint.

Upon substance of accusation being explained to the accused persons, they pleaded not guilty and claimed to be tried. The complainant examined its consultant Shri Tukaram Parab, in his capacity allegedly as its Constituted Attorney, as PW. 1. He produced various documents. The statement of accused no. 2 came to be recorded under Section 313 of Cr.P.C. He denied the case of the complainant and stated that he was not liable to pay any amount to the complainant as regards the disputed cheque and no offence under Section 138 was made out. The accused persons did not examine any witness in defence.

Upon consideration of the evidence on record, the learned J.M.F.C., held that all the ingredients of Section 138 of the N.I. Act were established against the accused beyond reasonable doubt. The accused was held guilty and was convicted of the offence punishable under Section 138 of N.I. Act and was sentenced to undergo Simple Imprisonment for a period of three months and to pay compensation of Rs. . 30,00,000/- to the complainant, in default, to undergo Simple Imprisonment for a further period of three months.

Aggrieved by the said Judgment, order and sentence passed by the learned J.M.F.C., the accused persons approached the learned Sessions Judge, South Goa, Margao by filing Criminal Appeal No. 61/2013. Vide judgment dated 11.12.2013 passed in the said Criminal Appeal, the learned Appellate Court held that the complaint was filed by the attorney of only one of the directors of the complainant-company in contravention of Section 287(2) of Companies Act, 1956 ("the Act", for short). It was found that the board resolution at Exhibit 44 was not a certified extract of the resolution but simply a document signed by single director and that the complainant failed to produce either the minutes of meeting or even to examine said Chandrakant Gawas. It was therefore held that there was doubt whether PW1 was authorised to file complaint and to depose on behalf of the complainant. The Appellate Court found that PW1 was not an employee of the complainant and was private consultant, having his own consultancy and had no personal knowledge of any of the transactions between the complainant and the accused and he had never acted as an agent of the complainant-company, which was the ''payee'' or ''the holder in due course'' of the cheque and possessed no knowledge of the actual transaction forming subject matter of the complaint. The Appellate Court held that besides the fact that the authorisation of PW1 to file the complaint was doubtful, the case was otherwise covered by the judgment of the Apex Court in the case of A.C. Narayanan Vs. State of Maharashtra and Another, . The Appellate Court further found that the complainant could not prove the existing liability of the accused under the cheque in question beyond reasonable doubt. Consequently, the appeal came to be allowed and the judgment, order and sentence passed by the learned J.M.F.C., was quashed and set aside. The complainant is aggrieved by the judgment of the Appellate Court and has filed the present revision application.

Mr. Usgaonkar, learned counsel for the complainant, pointed out that the revision application has been admitted on two points namely whether PW1 was authorized to give evidence/file complaint on behalf of the original complainant and whether the presumptions envisaged under Sections 118 and 138 of the N.I. Act had been overcome by the present respondents. He submitted that the complaint was filed by the company and was signed and verified by Tukaram Parab, as constituted attorney of the complainant. He submitted that Tukaram did so on the strength of the resolution, extract of which was produced by PW1 along with the original and after comparing with the original, the said notarised copy was marked as Exhibit 44. He read out Section 54 of the Act and submitted that a director can sign such extract. He further submitted that in terms of Section 48 of the Act, a seal of the company is required only when document is a deed. He submitted that the Appellate Court erred in holding that seal was required on the said extract of resolution. Learned Counsel, thereafter, took me through the evidence of PW1 and submitted that nowhere in the entire evidence, authority of PW1 was challenged. He submitted that there were only two directors of the complainant-company and that the minutes of the meeting authorising PW1 were signed in the presence of both. He submitted that a copy of the minutes of the meeting has now been annexed to the present revision application. He submitted that though there was no specific averment in the complaint that PW1 had personal knowledge about the transaction, however, PW1 stated in his affidavit-in-evidence that he had personal knowledge. He submitted that the judgment of the Supreme Court in the case of "A.C. Narayanan" (supra) came after the filing of complaint in the present case and has to interpreted meaningfully to advance justice to the parties. He submitted that the direction in the case of "A.C. Narayanan", (supra) that it is required to make specific assertion as to the knowledge of the power of attorney holder in the said transaction explicitly in the complaint is for the purpose of putting opposite party on guard and same should not be taken as mandatory but directory by giving such meaningful interpretation. He therefore, urged that PW1 had necessary authority to file the complainant as well to depose in the matter and had required personal knowledge of facts concerning transaction. He next submitted that in the reply, the respondents had not denied the transaction and it was not their case that Rs. 10,00,000/- was paid from out of the dues of Rs. 25,00,000/- and balance amount was only Rs. 15,00,000/-. He submitted that representative of the accused did not step into the witness box to prove their case and hence the presumption under section 139 of the N.I., Act cannot be said to have been rebutted by the accused. He pointed out that in paragraphs 2, 3 and 24 of the Judgment, the learned J.M.F.C. held that there was legally enforceable debt but the Appellate Court did not set aside the said findings. He submitted that there was an admission to the effect that the total liability was more than Rs. 100,00,000/- and, therefore, according to him, the subject cheque was towards legally enforceable debt or liability. He further submitted that there were no sufficient funds in the account of the accused and, therefore, endorsement "stop payment" cannot help them to establish that the cheque was issued towards security. According to the learned counsel, there was ample evidence in the form of invoices to prove the transaction and that the accused had not rebutted the presumption arising out of Section 139 of the N.I. Act. He, therefore, urged that the judgment of the Appellate Court be quashed and set aside and the judgment of the learned J.M.F.C. be restored. He relied upon the Judgment in the cases of "A.C. Narayanan" (supra) and Rangappa Vs. Sri Mohan, .

On the other hand, Mr. Shivan Dessai, learned counsel for the accused persons, read out Section 193 of the Act which shows as to how the minutes of the meeting have to be maintained. He read out Section 195 of the Act under which there is presumption of genuineness regarding the minutes. He submitted that under Section 55 of the Act a director can only give authentication. According to the learned counsel, presumption applies only to the minutes and to nothing else and therefore, minutes of the meeting had to be produced but were not produced by the complainant before the lower Court though PW1, several times, had undertaken to produce the same. He submitted that in a criminal revision now, the petitioner cannot be permitted to produce the same and this Court cannot look into the same. He read out Section 142 of the N.I. Act and submitted that complaint should be filed by payee or as the case may be the holder in due course of the cheque and this is notwithstanding anything contained in the Code of Criminal Procedure. He, therefore, urged that in case of company, the complaint must be filed by the payee or holder in due course and there is no other alternative. He pointed out that what is produced on record at Exhibit 44 itself is stated to be a resolution. He, therefore, urged that the same is not an extract of the resolution signed by one of the directors but it is a resolution signed by only one director and therefore the same is illegal. He, submitted that therefore PW1 had no authority to file the complaint and to depose in the case. He further submitted that PW1 was only a consultant and that he had no knowledge of the transaction pertaining to the cheque between the parties. He submitted that in the circumstances above, the judgment of the Apex Court in the case of "A.C. Narayanan", (supra) squarely applies to the case, and on this ground also the revision application deserves to be dismissed. He next submitted that there was no legally enforceable debt. He pointed out that according to the complainant, the accounts were settled on 31.10.2011 and not on 15.10.2011, which is the date of the cheque. He further pointed out that there are no log sheets of Adhithri produced on record and invoices are not proved to be pertaining to the accused persons. He, therefore, urged that the transaction was not proved and, therefore, legally enforceable debt was also not proved. He further submitted that certificate under Section 65B of the Evidence Act was wrongly issued by PW1 and the statement of accounts was therefore not proved. According to the learned counsel, the evidence on record would reveal that according to PW1 himself, an amount of Rs. 10,00,000/- was paid since the respondent could not pay Rs. 25,00,000/-. He submitted that a security could have become enforceable only if the liability had been crystalised and had become due. He submitted that in the present case, the liability had not been proved. He submitted that there is no infirmity in the judgment of the appellate Court and the view taken by the appellate Court is probable one and even if this Court finds that there is another view possible, this Court cannot substitute the same. He contended that when there was nothing proved against the respondents, the question of their representative stepping into the witness box did not arise. He, therefore, urged that acquittal of the respondent was perfectly legal and therefore, prayed that revision application be dismissed. Learned counsel relied upon the following judgments:-

i. A.C. Narayanan Vs. State of Maharashtra and Another,

ii. Rangappa Vs. Sri Mohan, .

iii. Shri Ashok Bampto Pagui Vs. Agencia Real Canacona Pvt. Ltd. and State, .

iv. Judgment dated 17.10.2012 passed by this Court in Criminal Appeal No. 55 of 2010.

v. Judgment dated 11.9.2012 passed by this Court in Criminal Appeal No. 27 of 2010.

I have gone through the records and proceedings. I have considered the submissions made by learned counsel for the parties and I have also gone through the judgments relied upon by the parties.

The first point that arises for determination is whether PW1 had authority to file the complaint and whether he had authority to depose on behalf of the complainant.

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 and Carrington Invt. (P) Ltd. and Another Vs. P.K. Prathapan and Others, , 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 of 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.

(a).-Section 193 of the Act provides as under:-

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 thereof 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 an 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; and

(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 one-third 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 two-thirds 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."

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. The contention of the learned Counsel for the complainant that the authority of PW1 to depose in the matter was not challenged in the cross-examination, is not true. On 17.08.2012, a suggestion was put to PW1 that the Board Resolution dated 12.12.2011 at Exhibit 44 was a false document since it had not been signed by any competent person. PW1 denied the above suggestion but added that he will have to check if there was any document to suggest that the Board meeting was held on 12.12.2011. On 15.10.2012, PW1 stated that in spite of his statement on the earlier date that he would check if there was any Board meeting of the complainant held on 12.12.2011, he had not checked the same. Be that as it may, the requirement of authority, in a particular manner, was statutory one and without the same the complaint could not have become valid and maintainable. In this Revision application, the applicant has produced a copy of the said minutes. In Revision Application, Court can call for and examine the record of proceedings before any inferior Court but cannot take on record any document which was not produced before the inferior Court. When the resolution of the Board of Directors produced by PW1 as Exhibit 44, which was signed by only one Director, did not show that both the Directors of the complainant were present and had passed the said resolution and in spite of having stated twice that he would check whether there was really any document showing that there was a Board meeting held on 12.12.2011, PW1 did not produce any minutes of such meeting before the learned J.M.F.C., the copy of the alleged minutes now produced which say that both the Directors were present, cannot be said to be beyond suspicion and therefore this court is not inclined to look into it.

In the case of "Shri Ashok Bampto Pagui" (supra), this Court has observed at para 21, thus:-

"A Director, as an individual Director, has no power to act on behalf of the company. He is only one of a body of Directors called the Board of Directors and alone he has no power except such as may be delegated to him by the Board of Directors or given to him by the articles of association of a company. In the case at hand, the complaint was filed by one of the Directors and as already stated by a Director who had initially complained to the Police that the subject cheque was forged by the accused, and, without any resolution of the company or any authorization from the Board of Directors. The view held by me is consistent with the views expressed in the decisions referred to herein above, namely, those of the Madras High Court in Ruby Leather Exports Vs. K. Venu (supra), Andhra Pradesh High Court and Delhi High Court which is now confirmed by the view held by the Apex Court in Dale and Carrington Invt. (P) Ltd. and Anr. v. P.K. Prathapan and Ors. (supra) and therefore I hold that the complaint in this case was not filed by the company as required under Clause (a) of Section 142 of the Act and on such a complaint no process could have been issued much less a conviction imposed. The said Shri Prashant Shirodkar could not have filed the same merely in his capacity of a Director. He had to file the same only with authorization from the Board of Directors. As already stated, prima facie, it appears that such authorization was issued by the complainant company in favour of Shri Pednekar as can be seen from the copy of power of attorney produced."

As rightly contended by the learned Counsel for the accused, the case of "Shri Ashok Bampto Pagui" (supra), directly applies to the present case. Therefore, the Appellate Court has correctly considered the provisions of law and rightly held that PW1 had no authority to file complaint and to depose on behalf of the complainant.

Without prejudice to the above, the next point for determination is whether PW1, Tukaram Parab, otherwise, could have deposed on behalf of the complainant.

In the case of "A.C. Narayanan" (supra) the Hon''ble Supreme Court has held thus:-

(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 specific 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 verification in the form of affidavit filed 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 specific 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.

There was no dispute that PW1 was not an employee of the complainant but was a consultant, having his own consultancy. The cross-examination of PW1 revealed that he had consultancy in accounts at his residence and that he was self-employed and was doing consultancy work at his residence as well as office and last about two years, since prior to his deposition, he had been providing consultancy service to the complainant and his job for the complainant was restricted to accountancy work and some miscellaneous work of the complainant. Though in the affidavit-in-evidence, PW1 stated that he was personally conversant with the facts of the case, however, there was no specific assertion explicitly made in the complaint as to the knowledge of PW1 in the said transaction. Be that as it may, the deposition of PW1 revealed that customers used to approach the company through the supervisor in case they wanted to hire the barges of the complainant. PW1 stated that supervisor was in charge of bookings in consultation with the owners. PW1 further deposed that the log sheets described sailing of the barges from the loading point and this log sheets were issued to comply with the order of the accused but log sheets were not written by him and were written by the driver by name R.K. Mondal. He stated that as per the log sheets at Exhibit 38 colly, the ore exported was 1281.035 tons and the costs of transportation depended upon the agreement between the transporter and the hirer. He also stated that documents from Exhibits 31 to 44 produced by him before the Court were given to him by the office staff of the complainant and they were not in his possession earlier. Thus, no documents were in the possession of PW1. He further stated that the accused never approached him for hiring the barge namely M.V. Shri Rashtroli. He voluntarily added that accused had approached Chandrakant Gawas and company supervisor. PW1 further stated that he was not present when the accused approached the supervisor and Shri Chandrakant Gawas and that he was told by supervisor and the boss of the company that the accused had approached Shri Chandrakant Gawas and the supervisor for hiring of the said barge. From the above, it was difficult to say that PW1 had personal knowledge in the transaction. He stated that he had been mostly informed about all the transactions pertaining to the hiring of the barge by the supervisor or said Mr. Chandrakant Gawas but he was not present for any of the meetings that might have taken place between the company and the accused. PW1 could not remember if the complainant-company was in need of finance from the month of October to December. He could not say as to whether liability which was recoverable from the accused was shown to the Income Tax Department. PW1 was not aware as to who was the foreman at the time when the transaction was effected. All the above answers given by PW1 reasonably show that PW1 had no personal knowledge of the transaction between the complainant and the accused, concerned the cheque. Various instances pointed out by the learned Counsel for the complainant in the evidence of PW1, do not show that PW1 had required personal knowledge of the transaction to which the subject cheque of the case pertained. As has been rightly observed by the Appellate Court, the testimony of PW1 was based on the information which must have been given to him by the supervisor of the complainant or by the Managing Director Shri Chandrakant Gawas. The supervisor and said Chandrakant Gawas have not been examined. In the circumstances above, the learned Appellate Court has rightly observed that the ratio of the case of "A.C. Narayanan" (supra) becomes squarely applicable to the case and therefore, it cannot be said that the complainant had proved the case beyond reasonable doubt.

The statement of account which is part of Exhibit 39-colly is electronic record. Hence, PW1 had issued a certificate under Section 65B of the Evidence Act which is also a part of Exhibit 39-colly. PW1, in the said certificate, certified that the statement of account attached to his certificate was true print out of the electronic record maintained by the complainant in the computer installed at the office in Chase International. He certified that the computer system of the complainant had been under the control of responsible officers including himself, at all times and that such record maintained in the computer had been maintained in the regular course of business of the complainant and the information in the prints submitted herein was derived from the information regularly fed in the computer system of the complainant. Such certificate under Section 65B of the Evidence Act must be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) so that the electronic record produced can be taken as admissible evidence. PW1 was only a private consultant and as already discussed above, he had no personal knowledge of the transaction between the parties. The evidence on record shows that PW1 was not in a responsible official position in relation to operation of the computers of the complainant. He was not the author of the log sheets or the invoices and even had no free access to the computer or the computerised record of the complainant which were admittedly maintained under due password known to the concerned office staff and all the documents from Exhibit 31 to Exhibit 44 were furnished to PW1 by office staff of the complainant and were not in his possession. In such circumstances, PW1 could not have issued the said certificate and the said statement of account could not be said to have been proved beyond reasonable doubt.

Lastly, let us see whether the legally enforceable debt to the extent of the cheque amount has been proved by the complainant to be existing on the date of the cheque, beyond reasonable doubt.

As per PW1, the accounts were settled on 31.10.2011 and not on 15.10.2011 which was the date of the subject-cheque. At one stage, PW1 deposed that the complainant received a sum of Rs. 10,00,000/- vide cheque dated 26.10.2011 because the accused had represented that he could not pay the amount of Rs. 25,00,000/- and honour the cheque. If that be so, the legally enforceable debt, as on the date of presentation of the subject-cheque to the banker of the complainant which was done some time in November 2011, could not have been Rs. 25,00,000/-. PW1 has also admitted that an amount of Rs. 5,26,581/- was also paid to the complainant by the accused. Once the above facts came on record, it was for PW1 to have explained as to how still the legally enforceable debt was Rs. 25,00,000/-. Subsequently, PW1 tried to correct himself by changing his earlier version and saying that the amount of Rs. 10,00,000/- which was paid by cheque dated 26.10.2011 was on account of the payment and not with regard to or in connection with the disputed cheque. It is further seen that there are no log sheets of M/s. Adhithri (accused no. 1) on record though there are some invoices. The said log sheets were not prepared by PW1 but by the driver named R.K. Mondal, who has not been examined to establish the transaction under the said log sheets. Two of the Invoices were in the name of Omkar Logistics, stated to be an independent sole proprietary concern of one Mr. Parsekar. Except the statement of PW1 in his affidavit that the barge was engaged by the accused twice for the benefit of Omkar Logistics and had requested the complainant to raise invoices in the name of said Omkar Logistics, which has been denied in his cross-examination, there was nothing on record to establish that the barge of the complainant was engaged by the accused for the said Omkar Logistics. There was no written agreement between the complainant and the accused regarding transportation of the mineral ore. In such circumstances, it was difficult to relate invoices to the accused. PW1 had at one stage on 15.10.2011 stated that he had produced the original copies of the invoices at Exhibits 31 to 38 and that they were handed over to him by the office staff of the complainant. In fact original invoices had to go to the accused. Subsequently on 7.11.2011 PW1 again stated that in spite of his statement that the original documents were produced before the Court including invoices which were in possession of the representative of the complainant he still says that the documents were sent to the accused. He then corrected himself by saying that the originals were sent to the accused and they were not in possession of the representative of the company. It is pertinent to note that PW1 had specifically deposed in cross-examination that he could not say as to whether he had shown any liability which was recoverable from the accused, to the Income Tax Department. Testimony of PW1 revealed that the complainant had received an amount of Rs. 1,24,126/- and Rs. 5,26,581/-from the accused and the subject-cheque was handed over to the complainant by the accused on 15.10.2011, but the barge was discharged only on 21.10.2011. Thus, as on 15.10.2011 the transaction was not even complete. Therefore, as has been rightly held by the Appellate Court the complainant had failed to prove the existing liability of the accused under the cheque in question, beyond reasonable doubt. In the case of "Rangappa" (supra), the Apex Court has held that an accused for discharging the burden of proof placed upon him under a statue need not examine himself. He may discharge his burden on the basis of the materials already brought on record. It has been held that the accused has constitutional right to maintain silence and standard of proof on the part of an accused is different whereas the prosecution must prove the guilt of an accused beyond all reasonable doubt. The standard of proof so as to prove a defence on the part of an accused is "preponderance of probabilities". Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which he relies. In the circumstances above, it has been held that the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the ''prudent man''. Circumstances of the present case are such that there was absolutely no need for any representative of the accused to step into the witness box.

Admittedly, the accused persons had duly replied the statutory notice under Section 138 of the N.I. Act, sent to them by the complainant. The said reply is at Exhibit 43. The accused informed the complainant that due to bad weather and natural calamity, the vessel ''BRONZA'' could not be loaded in time. It was informed that the complainant had raised the bills on terms which had never been discussed or accepted. It was stated in this reply that since the barge of the complainant was with the cargo of the accused from 06.06.2011 to 21.10.2011, as good business people, they would compensate expenses born by the complainant in the form of crew salary and HSD and shall also pay certain compensation for the trip no. 127/01 dated 06.06.2011 which got discharged on 21.10.2011. The accused stated that since the complainant was in urgency to settle the accounts towards the amount due and payable against the hire charges of the trip no. 127/01 dated 06.06.2011, of barge ''Rashtroli'' PNJ 313, the accused had issued cheque no. 524141 dated 15.10.2011 for Rs. 25,00,000/- as security with the condition that the said cheque will not be presented for encashment till final account was settled. The accused lamented that in spite of the above, it was not good that the complainant presented the said cheque in stead of returning the same back to the accused. It was also informed that since the complainant was urgently in need of money, the accused had issued a cheque of Rs. 10,00,000/- dated 26.10.2011 drawn on UCO bank, Vasco in addition to payment of an amount of Rs. 5,26,581/- made during various occasions at the request of the complainant when the barge was lying with load that is trip no. 127/01 dated 06.6.2011.

The presumption arising out of Section 139 of the N.I. Act, had been successfully rebutted by the accused persons. This Court by order dated 11.1.2013 in Criminal Appeal No. 42 of 2010 in the case of "Shri Shirish Vasant Borkar Vs. Shri Vijaykumar K. Pillienkar Fadke and another" relied upon the case of Khedu Mohton and Others Vs. State of Bihar, wherein the Apex Court has held that if from the evidence on record, two views are possible and one view is adopted by the trial court, there is no scope for interference by the High Court against that order even if the High Court is inclined to accept the other view. In the present case, since the view adopted by the learned Appellate Court is probable view there is no scope for interference with the impugned judgment and order.

In the result, there is no merit in the appeal and therefore the same is dismissed.