Case Note & Summary
The appellant, VPK Urban Co-operative Credit Society Limited, filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 against the respondent no.1 for dishonour of a cheque for Rs.48,400/- issued towards repayment of a loan of Rs.4,00,000/-. The cheque was dishonoured due to insufficient funds. The complainant issued a notice which was received by the accused, but payment was not made. The trial court issued process and the complainant examined its legal officer, Mrs. Ratna Sawant Amonkar, as PW1. The accused denied the case. However, the learned J.M.F.C., Ponda, dismissed the complaint on the preliminary point that the person who filed the complaint was not authorised to do so by the complainant society, thereby acquitting the accused. The High Court, in appeal, noted that the trial court had not framed any point regarding authorisation at the time of issuing process. The court observed that the authority to file a complaint can be delegated by a Board Resolution and the trial court ought to have given an opportunity to the complainant to prove the authorisation. The High Court set aside the impugned judgment and order and remanded the matter to the trial court for fresh consideration, directing the trial court to give an opportunity to the complainant to prove the authorisation of the person who filed the complaint.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Authority to File Complaint - The trial court dismissed the complaint at the preliminary stage on the ground that the legal officer who filed the complaint was not authorised by the complainant society. The High Court held that the authority to file a complaint can be delegated by a Board Resolution and the trial court ought to have given an opportunity to the complainant to prove the authorisation. The impugned order was set aside and the matter remanded for fresh consideration. (Paras 1-8)
Issue of Consideration
Whether the trial court was justified in dismissing the complaint under Section 138 of the Negotiable Instruments Act, 1881 on the preliminary ground that the person who filed the complaint was not authorised to do so by the complainant society.
Final Decision
The High Court allowed the appeal, set aside the impugned judgment and order dated 24.11.2008 passed by the learned J.M.F.C., Ponda, and remanded the matter to the trial court for fresh consideration. The trial court was directed to give an opportunity to the complainant to prove the authorisation of the person who filed the complaint.
Law Points
- Authority to file complaint under Section 138 NI Act can be delegated by Board Resolution
- Trial court cannot dismiss complaint at preliminary stage on ground of lack of authorisation without giving opportunity to prove
- Section 138 Negotiable Instruments Act
- 1881
- Section 142 Negotiable Instruments Act
