9911796707
TMI Blog2025 (3) TMI 558X X X X Extracts X X X X X X X X Extracts X X X X ..... ons, the accused is liable to pay credit purchase balance of Rs.67 lakhs on articles and in order to discharge the debt and legal liability, the accused issued ten cheques. When the said cheques were presented, cheque Nos.1 to 7 were returned with an endorsement funds insufficient and cheque Nos.8 to 10 were returned with an endorsement stop payment on 08.12.2008. Having received the said intimation, the complainant issued legal notice calling upon the accused to make the payment and he did not make the payment inspite of service of notice and gave reply in terms of Ex.P.46 and hence complaint was filed and cognizance was taken and the accused did not plead guilty and claimed trial. The complainant in order to substantiate its case, examined its official as P.W.1 and got marked the documents at Exs.P.1 to 54. The accused was subjected to 313 statement and thereafter he led evidence by examining himself as D.W.1 and marked the documents at Exs.D.1 to 12. The Trial Court having considered both oral and documentary evidence placed on record and also having considered the reply given in terms of Ex.P.46 dated 26.11.2008, extracted the contents of the reply notice in paragraph No.13 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The complaint filed by the Regional Head of the Company was not authorized to file the same, which was not at all considered by both the Courts while passing the impugned order and passed the conviction solely on the basis of Exs.P.1 to 10 and 46, which are totally irrelevant. It is contended that the petitioner has categorically made the statement that Ex.P.46, which is the reply notice, is not issued by him, but it was created by the officials of the complainant Company and the same was not properly appreciated. It is contended that the learned Magistrate and the Appellate Court failed to appreciate the fact that the respondent in his cross-examination stated that the complaint filed by the Regional Manager, namely Prabhakar Parshi who was not authorized to present the said complaint and he had filed the complaint without taking the permission of the complainant Company and he has filed the complaint in his personal capacity. It is contended that the alleged reply notice Ex.P.46 does not bear the signature of the petitioner and the alleged reply notice was disputed by the petitioner. This aspect is not considered by both the Courts. Both the Courts have totally misread and misu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ross- examination about the resolution passed by the Board of Directors. In paragraph No.4 discussion was made that since the Company is a juristic person, any person on behalf of the Company has to be authorized by the Company under the Articles of Association or by a separate resolution to depose on behalf of the Company and therefore, finding of the Trial Court is justified and it is unnecessary to go into the other reasons recorded by the Trial Court in dismissing the complaint and acquitting the accused. 9. The learned counsel also relied upon the judgment of this Court in the case of GEORGE JOSEPH AND ANOTHER v. HMT (INTERNATIONAL) LIMITED, BANGALORE AND ANOTHER reported in 2015 (1) AKR 822, wherein it is held that complaint on behalf of the Company if could be presented and prosecuted by a power of attorney holder, appointed by the Chairman of the Board of Director, a letter of authorization or a power of attorney executed by Chairman or other officer of the Company without delegation of the power to institute such proceedings having emanated from Board of Director, the same would invalidate proceedings. 10. The learned counsel referring these judgments would contend that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Mr. Prabhakar Parshi. While filing the complaint, authorization was given in terms of Ex.P.49. Having perused Ex.P.49, it is the true copy of the resolution passed by the Board of Directors of Forever Precious Jewellery and Diamonds Limited at its meeting held on 24.10.2008 at Mumbai, wherein it is resolved that Mr. Prabhakar Parshi, Regional Manager of the Company is authorized to initiate legal proceedings for and on behalf of the Company. It is important to note that the same is signed by the Managing Director on behalf of the Company. Hence, it is clear that resolution was passed on 24.10.2008 to initiate the proceedings against the revision petitioner herein. It is important to note that as per Ex.P.50, P.W.1 is authorized to give evidence and while giving the authorization, it is made clear that Sri Munendra Singh Chauhan is authorized to represent the Company in the complaint, particularly to this case and while giving such authorization it is made clear that the Company was earlier represented by Mr.Prabhakar Parshi, Regional Manager of the Company, who is no longer in the service of the Company and hence Mr. Chauhan is authorized to tender evidence on behalf of the Compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the powers of the Directors, in that behalf and may from time to time revoke, withdraw, alter or vary all or any of such powers. 17. Having considered the grounds urged by the learned counsel for the petitioner, it is clear that the complaint was filed by an authorized person and resolution was passed on 24.10.2008 and the said resolution was issued by the Managing Director of the Company consequent upon the resolution passed by the Board of Directors. Hence, it is clear that authorization was given to the Regional Manager of the Company to initiate the proceedings against the petitioner. The document of Ex.P.50 is also very clear that the said Regional Manager had left the Company and hence the Managing Director of the Company in exercise of the power under Articles 163 and 164 of the Articles of Association, authorized Mr. Munendra Singh Chauhan to examine himself and lead evidence. P.W.1 who has been examined before the Trial Court is the authorized person, who gave evidence and hence the petitioner cannot find fault with the evidence led by P.W.1. No doubt, the learned counsel for the petitioner relied upon the judgment of the Apex Court in the case of A.C. Narayanan (supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Chauhan by the Managing Director who was authorized to do the same. Hence, this judgment is also not applicable to the facts of the case on hand. 21. The learned counsel for the petitioner also relied upon the judgment of this Court in the case of Basanna Pattekar (supra), wherein discussion was made that since the Company is a juristic person, any person on behalf of the Company has to be authorized by the Company under the Articles of Association or by a separate resolution to depose on behalf of the Company and therefore, finding of the Trial Court is justified and it is unnecessary to go into the other reasons recorded by the Trial Court in dismissing the complaint and acquitting the accused. In the case on hand, I have already pointed out that there was a resolution by the Company and the Managing Director was authorized to exercise his powers under Articles 163 and 164 and hence the very contention of the learned counsel for the petitioner that the complaint is not maintainable cannot be accepted. 22. The learned counsel for the petitioner also relied upon the judgment of this Court in the case of George Joseph (supra), wherein it is held that a letter of authorization o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rth Rs.60 lakhs have been resold by him to third parties and the payments pertaining to those transactions have not yet been received by him and balance of articles worth Rs.7 lakhs are also pending on account between him and third parties. It is also stated that the complainant must be aware of the fact that for this type of transaction by the accused with third parties there is due consent and permission by the complainant and acknowledges the receipt of diamond jewellery articles supplied by the complainant and therefore requests the patience of the complainant by waiting for some time till all the payments are received by the accused from third parties and repay them to the complainant. Hence, this averment made in paragraph No.4 of the reply notice is clear that reply was given and notice was served and admitted the transaction. 24. It is important to note that the very reply notice issued by the petitioner was disputed by the petitioner that no such reply was given. If no such reply was given through his advocate, the petitioner ought to have examined the advocate who issued the notice on his behalf and who gave the instructions to issue such notice. But only contention was ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
