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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 ..... trate has observed 'the liability is proved'. The relevant observations find place in paragraph Nos. 21 to 24 whereas, learned Magistrate has dealt with in Issue No. 3 on the point of notice and its service in paragraph Nos. 25 to 34. Whereas, failure of the complainant to prove the authorization has been dealt with in Paragraph Nos. 9 to 17. 4. It is submitted 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 togethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondent/accused is --"He is not aware". Question No. 5 reads thus: "It has further come in his evidence that, Board of Directors of the Complainant Company have passed Resolution dated 02.12.2010 authorizing him to represent, file, depose, to give evidence and to initiate legal 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 pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yashankar Prasad Chaurasia 2022 (2) SCC 355. He read over the observations in paragraph Nos. 22 and 23. Whereas, learned Advocate Shri Satyanarayanan invited my attention to the specific lacuna as recorded in paragraph 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nutes book and original minutes book can be returned to the complainant." (iii) "It was very much easy and convenient for the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as copy of the board resolution is nothing but the reproduction 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 evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustified in raising this plea at subsequent 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-pr ..... 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