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TMI Blog2024 (2) TMI 1244X X X X Extracts X X X X X X X X Extracts X X X X ..... n the complainant has averred in the affidavit about production of the original and prayed for return of document, I think the complainant has fulfilled its responsibilities of proving the same - it was necessary for the accused at least to point out during the cross-examination that their originals are not produced. He need not call upon the complainant s witness to produce their original, he could have certainly asked the complainant s witness that the original minutes book is not produced. This was not put during the cross-examination. So that was the best opportunity for the accused to point out that lacuna. In fact, he allowed the complainant to go on with the case on the basis of the line of cross-examination he has adopted. Ultimately, the trial is conducted on the basis of what case you are putting. When it comes to the accused it is by way of cross-examination. When these questions were not put to complainant at a subsequent stage, you cannot put him to surprise by raising that plea subsequently at the time or arguments. This objection is not of such a kind which goes to the root of the matter. This objection is about mode of proof of the document. By way of his conduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d during the arguments by learned Advocate Shri Satyanarayanan that the findings by the trial Court on the point of liability and receipt of notice are not challenged and he has restricted his arguments only by supporting the findings of the trial Magistrate in respect of non-proving of the authorization . 5. In view of the same, I have heard both of them on the point of correctness of findings to Point No. 1. So the issues involved in this Appeal are :-- a. whether the complainant company has proved their representative C.W. No. 1 was authorised by them to give evidence before the court ? b. whether the trial court has committed wrong in discarding the oral and documentary evidence ? Submission for Appellant 6. According to Mr. Ponda, there are various circumstances available on record and if considered together, it can safely be concluded authorisation is proved . According to him, trial Court has not appreciated them properly by overlooking to the view expressed by Supreme Court. This Court can certainly correct the mistake. He invited my attention to the following averments:- (a) The averments in the affidavit of examination-in-chief sworn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egal proceeding on behalf of the complainant company against you. What you have to say about it? Answer given by the respondent/accused is -- He is not aware . 11. He invited my attention to the evidence given by the Respondent Accused on oath (page 98). His contention is even in his evidence before the Court he has not challenged those documents and not made grievance about non production of the original. 12. He submitted that the trial court has already marked them as :- a. Exh. 11 ( P-2 true copy of the resolution dated 2/12/2010 thereby authorising the Chairman to file complaint and give evidence) and b. Exh. 12 ( P-3 copy of minutes book of the meeting dated 2/12/2010). According to him, two documents were exhibited only when the trial Court was satisfied about the mode of proof. Trial court has referred these documents along with other documents during preliminary discussion in paragraph 4 of the judgment. Law as to objections about documents 13. On the point of law, as proof of documents, it is submitted that there are different kinds of objections which can be taken at the time of proof of documents. (i) It pertains to ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ragraph No. 7 (b) of that judgment. It deals with :- not signing copy of board resolution and whether it can be treated as true copy of the resolution . Finally, the Hon ble the Supreme Court observed as :- If in the affidavit the witness has affirmed that there is an authorization in favour of the Managing Director that is sufficient compliance about the necessary authorization. This issue arises only when the complaint is filed by an artificial entity just like the case before us. The only difference is not about not signing the true copy of the resolution but about mode of proof of two documents . Submissions for Respondent 18. Whereas, learned Advocate Shri Satyanarayanan invited my attention to the noting by the learned Magistrate which is referred above on page No. 8 of the paper book. He made the following submissions:- (i) Those noting does not disclose:- in fact, original of two documents i.e. minutes book and resolution were produced at any time before the Magistrate and they were verified by the learned Magistrate . (ii) According to him, if this basic requirement is not fulfilled by the witness for the compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e complainant to produce the original minutes book on the record at the time of evidence. (iv) But though there was sufficient opportunity with him minutes book was not brought before the Court and (v) Therefore, in absence of original minutes book copy of minutes of Resolution cannot be read in evidence as proof of authorization. Ratio in the judgment 22. Considering this reasoning, it will be relevant to see what are the observations in the judgments relied upon by Mr. Ponda. It is true that in case of Geeta Marine Service Pvt. Ltd. (supra), this Court has elaborately dealt with the practice being followed while recording the evidence of the complainant in the light of the provisions of Section 145 of the Negotiable Instruments Act. There is elaborate discussion about how the documents are to be marked as exhibit and when objections can be taken and how they are to be dealt with. In paragraph No. 23, three categories of objections are reflected, in the judgment of Apex Court they have been reproduced. They are categorized as follows :- (a) First objection regarding insufficiency of proof or irregular mode of proving the document. (b) Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of decision taken in the meeting. 28. On this background, it will relevant to consider the line of cross examination. Learned Advocate for the Respondent - Accused is not contending that either while cross-examining the witness or by way of 313 statement or by way of his own evidence, the Respondent Accused has challenged about not following the procedure and has challenged about existence of these documents . 29. When the complainant avers in his complaint that he has brought the originals and it may be returned to the complainant and certified true copies may be kept on record, what he really mean to suggest is let the originals may be returned to him and what is to be returned is minutes book only . It is no doubt true that copy of affidavit of examination-in-chief is given to the Respondent Accused. It is no doubt true that the Respondent Accused is aware about what the complainant s witness has stated in the affidavit. 30. It is a rule of evidence that a document has to be proved by producing the original that is primary evidence . It is also true that a document can be proved by way of secondary evidence. There are rules for producing a secondary evidence. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent stage. 33. Learned Magistrate was wrong in observing that the original was not produced. In fact, learned Magistrate has marked the certified copies at Exh. 11 and Exh. 12. We cannot put a blame on the learned Magistrate. The averments in the affidavit must have been considered. It is true that there is no remark that the originals are verified, but when these documents are marked as exhibits that reference was very much there in the affidavit. I do not think in the set of these facts any specific observation is required from the learned Magistrate that he has seen the originals and returned them. This Court has already observed the conduct of the Respondents in not putting questions in the cross-examination. So the findings of the trial Court cannot be sustained. Even the Hon ble Supreme Court has not considered the lacuana in not signing Board Resolution and considered the facts stated in chief-examination as sufficient . Ultimately, we have to see what is the purport of law. This finding needs to be set aside. 34. Certainly, the findings can be considered as perverse . Because the trial court has unnecessarily observed about non-production of the original minu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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