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CORAM :- U. V. BAKRE, J.
Date:- 25th November, 2014.
Citation; 2015 CRLJ(NOC)483 BOM
13. From the above provisions of the Act, it is clear that in the
absence of minutes of proceedings of the meetings under
Section 193 of the Act, authorising Shri Tukaram Parab, the
Consultant, to file complaint and to depose on behalf of the
complainant or authorising Shri Chandrakant Gawas to execute
power of attorney in favour of Tukaram to do all such acts, it
could not be said that there was such an authorisation. There is
presumption in respect of such minutes and the minutes are
presumed to be true and onus lies heavily on the party asserting
that they are not correct. In the present case admittedly,
certified true copy of the minutes of the meeting dated
12.12.2011 were not produced on record. The Special Power of19
Attorney at Exhibit 45 was also executed by the said Managing
Director namely Chandrakant Gawas and not be both the
Directors. The said Power of Attorney was executed in view of a
resolution being adopted by the company authorising the
Managing Director Shri Chandrakant Gawas to appoint a
constituted attorney on behalf of the company. But as already
stated above, the said resolution at Exhibit 44 was not adopted
by both the Directors but by a single Director. Hence, the said
Special Power of Attorney was also not sufficient to authorise Shri
Tukaram Parab to institute the complaint and to depose on behalf
of the complainant. Since in terms of Section 287(2) of the Act,
as quoted above, which prescribes the quorum for the meeting of
Board of Directors, the required quorum in the present case was
two and since only one Director had adopted the said resolution
and consequently executed the Power of Attorney, it could not be
said that the complaint was filed by the company i.e. payee or
by holder in due course of the cheque. In terms of Section
142 of the N. I. Act, a complaint is bound to be filed by payee or
as the case may be holder in due course of the cheque,
notwithstanding anything contained in the Code of Criminal
Procedure. Hence, the complaint had to be filed by the company
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and since it was not proved that Chandrakant Gawas was the20
authorised person of the complainant to file the complaint, the
complaint itself was not maintainable. The contention of the
learned Counsel for the complainant that the authority of PW1 to
depose in the matter was not challenged in the crossexamination,
is not true. On 17.08.2012, a suggestion was put to
PW1 that the Board Resolution dated 12.12.2011 at Exhibit 44
was a false document since it had not been signed by any
competent person. PW1 denied the above suggestion but added
that he will have to check if there was any document to suggest
that the Board meeting was held on 12.12.2011. On 15.10.2012,
PW1 stated that in spite of his statement on the earlier date that
he would check if there was any Board meeting of the
complainant held on 12.12.2011, he had not checked the same.
Be that as it may, the requirement of authority, in a particular
manner, was statutory one and without the same the complaint
could not have become valid and maintainable. In this Revision
application, the applicant has produced a copy of the said
minutes. In Revision Application, Court can call for and examine
the record of proceedings before any inferior Court but cannot
take on record any document which was not produced before the
inferior Court. When the resolution of the Board of Directors
produced by PW1 as Exhibit 44, which was signed by only one21
Director, did not show that both the Directors of the complainant
were present and had passed the said resolution and in spite of
having stated twice that he would check whether there was
really any document showing that there was a Board meeting
held on 12.12.2011, PW1 did not produce any minutes of such
meeting before the learned J.M.F.C., the copy of the alleged
minutes now produced which say that both the Directors were
present, cannot be said to be beyond suspicion and therefore this
court is not inclined to look into it.
14. In the case of Shri Ashok Bampto Pagui (supra), this
Court has observed at para 21, thus:-
A Director, as an individual Director, has no
power to act on behalf of the company. He is only
one of a body of Directors called the Board of
Directors and alone he has no power except such
as may be delegated to him by the Board of
Directors or given to him by the articles of
association of a company. In the case at hand, the
complaint was filed by one of the Directors and as
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already stated by a Director who had initially
complained to the Police that the subject cheque
was forged by the accused, and, without any
resolution of the company or any authorization
from the Board of Directors. The view held by me22
is consistent with the views expressed in the
decisions referred to herein above, namely, those
of the Madras High Court in Ruby Leather Exports
Vs. K. Venu (supra), Andhra Pradesh High Court
and Delhi High Court which is now confirmed by
the view held by the Apex Court in Dale and
Carrington Invt.(P) Ltd. and Anr. v. P. K. Prathapan
and Ors. (supra) and therefore I hold that the
complaint in this case was not filed by the
company as required under Clause (a) of Section
142 of the Act and on such a complaint no process
could have been issued much less a conviction
imposed. The said Shri Prashant Shirodkar could
not have filed the same merely in his capacity of a
Director. He had to file the same only with
authorization from the Board of Directors. As
already stated, prima facie, it appears that such
authorization was issued by the complainant
company in favour of Shri Pednekar as can be
seen from the copy of power of attorney
produced.
15. As rightly contended by the learned Counsel for the
accused, the case of Shri Ashok Bampto Pagui (supra), directly
applies to the present case. Therefore, the Appellate Court has
correctly considered the provisions of law and rightly held that
PW1 had no authority to file complaint and to depose on behalf23
of the complainant.
16. Without prejudice to the above, the next point for
determination is whether PW1, Tukaram Parab, otherwise,
could have deposed on behalf of the complainant.
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