TMI Blog2009 (10) TMI 988X X X X Extracts X X X X X X X X Extracts X X X X ..... e that the complaints were filed by the complainant which is a Multi State Co-operative Society and all the three complaints were filed through Shashikant R. Sawaikar, the acting manager of Curti Branch of the said complainant who had also filed an affidavit of verification. The said Shashikant Sawaikar was examined on behalf of the complainant in the first and third case. Pramod Kavlekar was examined on behalf of the complainant in the second case. In the second case, the said Shashikant Sawaikar was examined as PW2. In all the three cases, the authority of the said Shashikant Sawaikar as well as of the said Pramod Kavlekar who filed the complaints and/or deposed on behalf of the complainant was questioned by the accused. 7. There is no dispute that the subject cheques when presented for payment were returned dishonoured for want of sufficient funds in the account of the accused and the . complainant having sent the statutory notices, the accused replied the same and, at least in one case admitting the liability of the complainant and seeking time to make the payment. However, the main question in these appeals is whether the said Shashikant Sawaikar, or for that matter the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , to sign and execute documents such as Complaints, Plaints, Affidavits, Written Statements, Vakalatnama and depose on behalf of the Bank in cases filed by the Bank and in cases filed against the Bank by any party. 9. The said Pramod K. Kavlekar (in CC No. 366/OA/2005/B) stated that besides the authority letter dated 10.1.2008 there was no other document given to him. He further stated that besides the letter of authority which he had produced, he had no other power, as branch manager. He also stated that by the said letter of authority, he was given power to represent the bank and depose on its behalf and besides that he did not have any other document. In further cross-examination he stated that be did not know whether the Managing Director Shri Ladu Raya Gaonkar or previous Managing Director Shri Anant Vithal Shinde had any power given by board of directors to issue letter of authority to them and further stated that be did not know whether any resolution was passed in order to file the complaint. 10. The complainant's witness Shri Shashikant Sawaikar (in CC No. 486/OA/05) stated that besides the letter of authority dated 25.8.2005 no power was given to him by the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lainant's witness had admitted that he got no power of attorney or resolution passed in the meeting of the board of directors of the complainant and as such proceeded to dismiss the complaint and acquit {he accused. In CC No. 487/OA/2005 the learned Trial Court (another Magistrate) concluded that it was a fundamental that the person who files the complaint ought to have powers to do so and it was open for the complainant, at any stage, to rectify the defect considering that the person who filed the complaint initially did not have the powers to do so, The Trial Court also referred to the case of Alka Toraskar v. Vaishya Urban Co-op. Credit Society Ltd. 2006 (6) All MR 397: (2007) 1 AIR Bom R 399, and in terms thereof, held that such complaints could not have even been entertained. The learned Trial Court referred to the case of Ashok Bamto Pagui v. Agencia Real Canacona Pvt. Ltd. and Anr. 2007 All MR Cri 2238 : (2007) 5 AIR Bom R 560 as well as to the case of Om Shakti Scheduled Castes v. M. Venkatesh 2008 (66) AC 414 : AIR 2008 (NOC) 697 (Kant H.C.) and held that Exhibit 22 which was a simple letter could not be said to be valid and could not have authorized Shri Sawaikar to f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the case of State v. Dadasaheb Rane 2006 (2) GLR 529 : (2007)2 AIR Bom R 564 as well as M.M. T.C. Ltd. and Anr. v. Medchl Chemicals and Pharma (P) Ltd., and Anr. 2002 Cri LJ 266. At the outset, it may be stated that the case of Dadasaheb Rane (supra) has only recognized the general principle of law that anyone can set the criminal law in motion by filing a complaint of facts constituting an offence before a Magistrate entitled to take cognizance. That principle is also reiterated by the Apex Court in para 11 of M/s. M.M.T.C. Ltd. (supra). Reliance on the case of M/s. MMTC Ltd. (2002 Cri-LJ 266) (supra) is misplaced because whatever observations were made by the Apex Court in that case were made at the early stage of filing of the complaint, and , it was observed by the Apex Court that even presuming that initially there was no authority, still the company can, at any stage, rectify that defect, by signing at a subsequent stage by a person who is competent to represent the company. That stage is now not available to the complainant in these cases since the complainant chose not to rectify the defect by filing appropriate powers of attorney in favour of the said two witnesses in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eply complaints, affidavits, representations, declarations, cross-objections, memos of appeal, revision, etc. and to make any statements, defences and to verify the same and further to give statements on oath or to depose on behalf of the said company in any Court of law and/or before the public authorities or authority . Shri Usgaonkaron the other hand submits that the plaint referred to in the said clause could be understood only as a plaint as defined under the Code of Civil Procedure and the complaint referred to therein could be understood with reference to the Code of Criminal Procedure, 1973 and there-fore the expression reply complaints could be understood only as a complaint as contemplated under the Code of Criminal Procedure, 1973. A bare reading of the said Clause 3 shows that it refers to reply complaints and not to any complaints. One does not know what the principal exactly meant by the said expression. Nevertheless, in (Capt. Harcharanjit Singh Thind v. Deeksha Thind and Ors.) unreported judgment of this Court dated 22-2-2008 in Appeal From Order No. 89/2006) this Court had referred to Halsbury's Lawk of England wherein it was stated that: An inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd 'sue' as per Black's Law Dictionary means to commence or to continue legal proceedings for recovery of a right. 19. Shri Sardessai has also placed reliance on a judgment of the Apex Court in the case of Province of Bombay v. Khushaldas S. Advani AIR (37) 1950 SC 222 wherein it has been observed that the expression sue means the enforcement of a claim or a civil right by means of legal proceedings . The same view appears in the minority judgment of that case wherein it is stated that the expression sue in its plain grammatical sense connotes the enforcement of a claim or civil right by means of legal proceedings. The proceedings may be initiated by a plaint or by a petition of motion, and it cannot be said that what Section 176 of the Constitution Act contemplates is a proceeding which must begin with a plaint and end in a decree as laid down in Civil Procedure Code. 20. Although the complainant might have had good cases on merits, the complainant's cases were bound to fail in the absence of the proper authority having been given to the said two officers of the complainant, the complainant being a Multi State Co-operative Society. Going back to the Bl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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