M/s. Rising Implex Pvt. Ltd. v. State of Maharashtra & Ors.

Smt. Mallika A. Ingale, Advocate for the Appellant. Mr. Y. S. Shinde, APP for the Respondent No.1 State. Mr. Anand A. Pande, Advocate i/b. Mr. Rajendra Mishra for the Respondent No.2. P. C. : CORAM : J. H. BHATIA, J. DATE : 21ST SEPTEMBER 2011 The original complainant has preferred this appeal against the order of acquittal of respondent No.2, for the offence punishable under Section 138 of the Negotiable Instruments Act, passed by the Metropolitan Magistrate, 10th Court, Andheri in C. C. No. 2327/SS/2005. Heard the learned Counsel and perused the impugned judgment, the evidence led by the parties and the relevant documents.

2. The complaint was filed by the complainant company through one Sadanand Purushottam Deshpande, who claimed that he was authorised by the complainant company to file the complaint and a copy of the resolution passed by the complainant to that effect was annexed with the complaint. According to the complainant, a cheque of Rs. 3,00,000/- was issued by the accused towards the repayment of the amount received by him earlier. But that cheque was dishonoured, and despite service of statutory notice, he had failed to make the payment. The respondent-accused denied that he had received any amount from the complainant. According to the accused, he had several transactions with the complainant company, and as a security of certain future transactions, he had given the cheque and the said cheque was misused.

3. The learned Trial Court acquitted the accused mainly on two grounds. Firstly, no evidence was led to establish that the Complainant Company has MP 2 APEAL490_10 passed any resolution authorizing said Sadanand Purushottam Deshpande to file the complaint under Section 138 of the Negotiable Instruments Act, and secondly, no evidence was led to prove that the receipt, which was allegedly signed and issued by the accused, was in fact signed by him. The learned Trial Court found that the signature on the said receipt differed from the admitted signature of the accused on the other documents.

4. The learned Counsel for the appellant vehemently contends that Sadanand Purushottam Deshpande was the Director of the complainant company, and therefore, he could file complaint on behalf of the company even without authorization by a resolution passed by the Board of Directors and even if the resolution to that effect was not proved. No attempt was made on behalf of the complainant company to produce the original record about passing of the resolution authorizing Sadanand Purushottam Deshpande to file the complaint. No evidence was led in that respect. In the complaint, it is nowhere contended that said Sadanand Purushottam Deshpande was a director of the complainant Company and in that capacity, he was entitled to institute criminal proceedings or cases. Assuming that he was a director, the learned Counsel for the appellant could not point out any provision from the Companies Act on the basis of which it could be said that any Director of the company can file criminal case or any legal proceeding against any party without authorization by a resolution passed by the Board of Directors. General powers of the Board of Directors are mentioned in Section 291 and it is specified in Section 292 that certain powers can be exercised by the Board only at a meeting. The company acts through the Board of Directors, and if any, officer or a particular Director is to be authorized to do certain acts for and on behalf of the company, the Board of Directors can pass a resolution to that effect. The complaint nowhere discloses that, under the provisions of the Companies Act or under the Memorandum of Association or Articles of Association, each of the Director, and particularly Sadanand Purushottam Deshpande, was authorized to file criminal case or any legal proceeding for and on behalf of the company without any specific authorization. MP 3 APEAL490_10 Secondly, no resolution was proved.

6. The learned Counsel for the accused contended that every Director cannot be deemed to be wholly responsible for the conduct of the business, and therefore, every Director of the company also cannot be deemed to be authorized to file criminal case or any legal proceeding against any party on behalf of the company unless he is specifically authorized for that by a resolution passed by the Board of Directors. In support of this, he placed reliance upon K. K. Ahuja Vs. V. K. Vora reported in (2009) 10 SCC page 48. In that case, the question was as to whether every Director and officer of the company was responsible under Section 141 of the Negotiable Instruments Act and whether each of such Director or officer can be treated to be responsible to the company for the conduct of the business of the company. In that reference, the Supreme Court observed thus: “21. A combined reading of Sections 5 and 291 of the Companies Act, 1956 with the definitions in clauses (24), (26), (30), (31), (45) of Section 2 of that Act would show that the following persons are considered to be the persons who are responsible to the company for the conduct of the business of the company: (a) (b) (c) (d) (e) the Managing Director(s); the whole-time Director(s); the manager; the secretary; any person in accordance with whose directions or instructions the Board of Directors of the company is accustomed to act; (f) any person charged by the Board with the responsibility of complying with that provision (and who has given his consent in that behalf to the Board); and (g) where any company does not have any of the officers specified in clauses (a) to (c), any Director or Directors who may be specified by the Board in this behalf or where no Director is so specified, all the Directors. It follows that other employees of the company, cannot be said to be persons who are responsible to the company, for the conduct of the business of the company.” From these observations, it is clear that only the Managing Director, whole-time Director, Manager and the Secretary are deemed to be responsible to the company for the conduct of the business. However, any other person MP 4 APEAL490_10 including the Director or an officer, may, be charged with such a responsibility by the Board. The Board of Directors will act by passing resolutions. In absence of evidence of any such resolution, particularly when in the complaint, it was specifically stated that there was a resolution, the prosecution could not succeed and the Trial Court was right in rejecting the complaint on the ground that the complaint was filed by a person, who was not authorized to do so.

7. Though a document purported to be a receipt signed and issued by the accused was produced before the Trial Court, no attempt was made to prove the same. The Trial Court noted discrepancy in the alleged signature of the accused on that receipt and the admitted signature of the accused on the other documents.

8. Taking into consideration the facts noted above, it is difficult to say that the view taken by the Trial Court was not reasonably possible. It is settled position of law that even if two different views are possible, the Appellate Court will not interfere with the view taken by the Trial Court while passing the order of acquittal unless that view is per se wrong, illegal, perverse or impossible. I do not find any such fault in the order of the Trial Court. The view taken by the Trial Court is also reasonably possible in respect of the receipt.

9. The learned Counsel for the complainant made a request that the matter may be remanded back to the Trial Court giving an opportunity to the complainant to lead further evidence in respect of the resolution and the receipt. The learned Counsel in support of this contention places reliance upon the order passed by the learned Single Judge of this Court in Criminal Application No. 244 of 2011 (M/s. Unique Fabricators & another Vs. State of Maharashtra & another). In that case, it was brought on record that the documents of the complainant company were given to its Advocate but the Advocate had suppressed those documents and not produced the same before the Court, and therefore, in the interests of justice, the court had remanded the matter. In the present case, the documents were produced by the Advocate before the Court but the complainant failed to lead evidence in MP 5 APEAL490_10 support of them. Therefore, I do not find any justification to remand the matter back to the Trial Court.

10. Therefore, no purpose would be served by admitting the appeal and keeping it pending for long.

11. In the result, the appeal stands dismissed. (J. H. BHATIA, J)