9911796707
TMI Blog2006 (6) TMI 212X X X X Extracts X X X X X X X X Extracts X X X X ..... tice, exhibit P5 dated January 1, 19%. This was within the time prescribed in clause ( b ) of proviso to section 138. Exhibit P5 was duly acknowledged as is revealed by exhibit P7 by the accused ; but it was not responded. Therefore the appellant filed a com plaint. The accused raised several contentions including that the company was not properly represented in the case. PW1 did not have authorisation to depose on behalf of the company with regard to the transaction centered around exhibit P2 cheque, it was contended. The accused had also a case that the signature on the cheque was not his. The court below found force in the contention. The complaint was dismissed acquitting the accused. Therefore, this appeal. It is submitted on behalf of the appellant that exhibit P9 resolution passed by the company authorised its executive director Vijayan Eapen to represent the company in all its legal action. The said resolution also enabled the said Vijayan Eapen, in case he could not represent in different courts, to delegate that duty to any one of his choice. Accordingly the said Vijayan Eapen executed exhibit P1 authorisation in favour of PW1 Pius to represent the company and to depose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the company. There is no dispute on that point. The company being an incorporated body has to be represented by a corporeal person, any of the director or a duly authorised agent or an employee. The complaint has been signed by one Aniyankutty Varghese. There was no dispute as to his competency to sign the complaint, representing the company. It is probable that an officer of the company may quit the company or cease to be the employee/director to represent the company on several reasons. The said Aniyankutty resigned and left the company. It was in that circumstances, and when there were other litigations, exhibit P9 resolution was adopted enabling its executive director, Vijayan Eapen to represent the company and also enabling him to sub-delegate that function to any one else as and when occasion arises. It was in that regard exhibit P1 power of attorney in favour of PW1 was executed. All the directors, except one have signed exhibit P9 resolution. Therefore there is nothing illegal in it. It is in tune with section 289 of the Companies Act, the appellant submitted. Section 289 of the Companies Act reads as follows : "No resolution shall be deemed to have been duly passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore exhibit P9 cannot be taken as a resolution properly passed in terms of section 289 of the Companies Act, 1956. When the statute indicates a matter to be done in a particular manner, all the formalities so insisted by the statute have to be followed' Exhibit P9 reveals that it has not been circulated at least to one of the directors in India before it was duly passed. It cannot be therefore taken that it was duly approved by the board of directors or a committee as the case may be as enjoined in section 289. Counsel for the appellant also much relied on section 290, which reads as follows : "Acts done by a person as a director shall be valid, notwithstanding that it may afterwards be discovered that his appointment was invalid by reason of any defect or disqualification or had terminated by virtue of any provision contained in this Act or in the articles." Therefore the sub-delegation to PW1 made by Vijayan Eapen is saved for all purposes ; it is contended. Of course, any act done by a director cannot be questioned because of any fault in authorisation empowering him to do so. But for that purpose the director concerned should be authorised legally to act so. The au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lainant, and it must necessarily associate a human being as de facto complaint to represent the former in the court proceedings. It has further been held that no magistrate shall insist that the particular person, whose statement was taken on oath at the first instance, alone can continue to represent the company till the end of the proceedings. It has been held that there may be occasions when different persons can represent the company. It has been held that it is open to the de jure complainant company to seek permission of the court for sending any other person to represent the company in the court. Thus, even presuming, that initially there was no authority, still the company can, at any stage, rectify that defect. At a subsequent stage the company can send a person who is competent to represent the company. The complaints could thus not have been quashed on this ground." The proceedings sheet of the court below reveals that it petition had been filed on behalf of the complainant company by its advocate indicating that Anyankutty who signed the complaint had left the service of the company and in place of him P1 was to be substituted. It is also seen that. This request had b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it has to be taken that the signature appearing in exhibit P2 cheque is that of the account holder himself. The accused does not have a case that exhibit P2 cheque was not one issued from his bankers to him towards the account maintained by him in that bank. Therefore, the only probable conclusion, in such circumstances is that the signature appearing on exhibit P2 is that of the accused himself. A mere suggestion in the cross-examination that the cheque had been given to some other as blank cheque and the complainant had obtained it from him without the knowledge and consent of the accused and put the date and amount and presented to the bank is not sufficient to rebut the statutory presumption available against the accused under section 139 of the Negotiable Instruments Act, 1881. When the signature is found to be that of the accused the necessary presumption under section 138 is that, that the cheque had been given in due discharge of a legally enforceable debt. That the presumption statutorily available is not in anyway stand rebutted with out letting in support evidence in any form. Therefore, the cheque cannot be stated to be one not issued by the complainant and that it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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