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TMI Blog2025 (3) TMI 558X X X X Extracts X X X X X X X X Extracts X X X X ..... that the complaint was not signed either by the Managing Director or Director of Company and subsequently Deputy General Manager of the Company gave evidence on behalf of the Company though he does not know anything. Nothing on record to suggest that he was authorized by Managing Director or any Director. Hence, the acquittal of the accused was held proper. But in the case on hand, the factual aspect is different and before initiating the proceedings, general body meeting was held and resolution was passed in terms of Ex.P.49 and when the person who was authorized left the Company, authorization was given to P.W.1 by the Managing Director in terms of Ex.P.50 and also powers are conferred to the Director and Managing Director in terms of Articles 163 and 164 of Ex.P.52 i.e., Memorandum and Articles of Association of the complainant Company and hence the said judgment is not applicable to the facts of the case on hand. This Court having considered the merits also, it is not in dispute that cheques Exs.P.1 to 10 have been issued. In one breath the petitioner says that those cheques are issued as security and in other breath says that the cheques were obtained by coercion in the pol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inable and the conviction was justified based on the evidence and legal presumptions under the NI Act.
The criminal revisional revision is dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... ated both oral and documentary evidence placed on record and comes to the conclusion that the accused fails to rebut the fact that he has not issued any cheques for discharge of liability for purchase of jewels from the complainant and held that the complainant has proved its case and dismissed the appeal in coming to the conclusion that the Trial Court has not committed any error. 4. Being aggrieved by the concurrent finding, the present revision petition is filed before this Court. 5. The main contention of the learned counsel for the petitioner before this Court is that both the Courts have committed an error in coming to the conclusion that the complaint is maintainable and actually the complaint itself is not maintainable and the witness who has been examined is without any resolution. The learned counsel contend that both the Courts have committed an error in not appreciating and applying the mind that the respondent Company did not prefer the complaint in question. The complaint filed by the complainant is not in accordance with the provisions of the Companies Act. The complaint filed by the Regional Head of the Company was not authorized to file the same, which was not at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nos.24 and 25 of the Madras High Court judgment in the case of Shakthi Concrete Industries Limited and others v. Valuable Steels (India) Limited reported in (2000) 100 Company Cases 429, wherein discussion was made with regard to Sections 142 and 142(a) of the NI Act. The learned counsel also brought to the notice of this Court paragraph No.4, wherein discussion was made regarding holding the view that the Company being a juristic person, any person on behalf of the Company would have to be authorized by the Company in the Articles of Association or by a separate resolution to depose on behalf of the Company and also discussion was made with regard to Section 291 of the Companies Act. 8. The learned counsel also relied upon the judgment of this Court in the case of DIRECTOR, MARUTI FEEDS AND FARMS PRIVATE LIMITED v. BASANNA PATTEKAR reported in 2007 SCC ONLINE KAR 210 and brought to the notice of this Court paragraph Nos.3 and 4 of the said judgment, wherein an observation is made that the resolution of the Company is not produced and he has pleaded his ignorance in the cross- examination about the resolution passed by the Board of Directors. In paragraph No.4 discussion was made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les and the accused had approached the complainant there and then and availed the credit benefit by purchasing diamond and gold articles. It is the case of the complainant that as per the business transaction, the accused was liable to pay Rs.67 lakhs as credit purchase balance. The learned counsel contend that ten cheques were issued by the accused and when the same were presented, they were dishonoured with an endorsement insufficient funds for cheque Nos.1 to 7 and stop payment for cheque Nos.8 to 10. Hence, legal notice was issued to the accused and the same has been served and reply was given in terms of Ex.P.46. The Trial Court and the Appellate Court having taken note of both oral and documentary evidence placed on record, convicted the petitioner and confirmed the same. 14. The main contention of the learned counsel for the petitioner is that the very complaint itself is not maintainable. In order to consider the said contention, the Court has to take note of the very complaint and the complaint is filed on behalf of the Company represented by its Regional Manager, Mr. Prabhakar Parshi. While filing the complaint, authorization was given in terms of Ex.P.49. Having perused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -delegate or attorney all or any of the powers, authorities and discretions for the time being vested. 16. Article 164(a) and (b) of the Articles of Association reads as follows: 164(a) Subject to the provisions of the Act, the Directors may from time to time appoint or re- appoint one or more of their body to be the Managing Director or Directors or the whole time Director or Directors of the Company for such term not exceeding five years and subject to such remuneration, terms and conditions as they may think fit. (b) Subject to the provisions of the Act, the Directors may from time to time entrust to and confer upon the Managing Director or the whole time Director, for the time being such of the powers exercisable under these presents by the Directors as they may think fit, and may confer such powers for such time and to be exercised for such objects and purposes and upon such terms and conditions, and with such restrictions as they think expedient, and they may confer such powers, either collaterally with or to the exclusion of and in substitution for all or any of the powers of the Directors, in that behalf and may from time to time revoke, withdraw, alter or vary all or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on is made that there is no dispute in the concept that the Company being by itself a legal person as a payee or a holder in due course, alone could file the complaint under Section 142 of the NI Act. It is also not in dispute that a Director or a Manager in his individual capacity cannot be said to be a payee or a holder in due course in terms of Section 142(a) of the Act. It is also taken note of that the complainant Company has approached the Court through some human agency, namely, a Director of the Company, in preferring the complaints, as the Company has no soul, mind, body and, limbs. If the Company approaches the Court through some other person, who is not connected with the affairs of the Company, then necessarily it has to authorize that person to file the complaint on its behalf. 20. In the case on hand, the factual aspects are different. The Regional Manager of the Company was authorized to file a complaint and resolution was passed in the general body meeting and thereafter on account of he left the Company, further authorization was given to Sri Munendra Singh Chauhan by the Managing Director who was authorized to do the same. Hence, this judgment is also not applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heques were obtained by coercion in the police station. The issuance of cheques is not disputed and the same is signed by the petitioner is also not in dispute. The petitioner cannot blow hot and cold. The fact that there were business transactions between the complainant and the accused is not in dispute. It is important to note that the Trial Court relied upon Ex.P.46 reply notice issued by the accused. In the reply notice, the accused categorically admitted the relationship between the parties and also the business and admits that he has done business with the complainant to the extent of 3 Crores so far and the complainant used to give jewellery to the accused to be kept in safe custody and for sale worth Rs.2 Crores always and in turn the accused used to sell them or part thereof and settle the transaction by remitting dues and return the balance jewellery on the complainant s demand. In paragraph No.4 of the reply notice, the accused admits that the complainant has sold diamond jewellery item to the accused worth Rs.67 lakhs and that the diamond jewellery articles worth Rs.60 lakhs have been resold by him to third parties and the payments pertaining to those transactions have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner and comes to the conclusion that the complainant has discharged his initial burden. It has also taken note of presumption under Section 139 of the NI Act since cheques are admitted and also taken note of the issuance of the cheques by the petitioner for discharge of liability for the purchase of jewels from the complainant and in the reply also it is stated that the complainant has to wait for some time for clearance of payment by third parties to whom he has sold the articles. 26. Having considered all these materials on record, both the Trial Court and the Appellate Court comes to the conclusion that the complainant has proved the case. No doubt, the revision petitioner examined himself as D.W.1 and got marked the documents at Exs.D.1 to 12, but no material is placed on record to show that the accused has repaid the amount of Rs.67 lakhs. He gave admission in the cross-examination regarding transaction is concerned, particularly admitted the memorandum of agreement in terms of Ex.P.47 with regard to the business and also categorically admits that earlier he was having good and cordial relationship with the Company and also admits that he did not take any action in respec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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