TaxTMI 
TaxTMI 
2024 (2) TMI 1244
X X X X Extracts X X X X
X X X X Extracts X X X X
.... service of demand notice. The trial Magistrate has observed 'the liability is proved'. The relevant observations find place in paragraph Nos. 21 to 24 whereas, learned Magistrate has dealt with in Issue No. 3 on the point of notice and its service in paragraph Nos. 25 to 34. Whereas, failure of the complainant to prove the authorization has been dealt with in Paragraph Nos. 9 to 17. 4. It is submitted during the arguments by learned Advocate Shri Satyanarayanan that the findings by the trial Court on the point of liability and receipt of notice are not challenged and he has restricted his arguments only by supporting the findings of the trial Magistrate in respect of 'non-proving of the authorization'. 5. In view of the same, I have heard both of them on the point of correctness of findings to Point No. 1. So the issues involved in this Appeal are :-- a. "whether the complainant company has proved their representative C.W. No. 1 was authorised by them to give evidence before the court" ? b. "whether the trial court has committed wrong in discarding the oral and documentary evidence"? Submission for Appellant 6. According to Mr. Ponda, there are variou....
X X X X Extracts X X X X
X X X X Extracts X X X X
....any i.e. M/s. Prince Marine Transport Services Private Limited. What you have to say about it?" Answer given by the respondent/accused is --"He is not aware". Question No. 5 reads thus: "It has further come in his evidence that, Board of Directors of the Complainant Company have passed Resolution dated 02.12.2010 authorizing him to represent, file, depose, to give evidence and to initiate legal proceeding on behalf of the complainant company against you. What you have to say about it? Answer given by the respondent/accused is --"He is not aware". 11. He invited my attention to the evidence given by the Respondent - Accused on oath (page 98). His contention is even in his evidence before the Court he has not challenged those documents and not made grievance about non production of the original. 12. He submitted that the trial court has already marked them as :- a. Exh. 11 ('P-2 true copy of the resolution dated 2/12/2010 thereby authorising the Chairman to file complaint and give evidence) and b. Exh. 12 ('P-3' copy of minutes book of the meeting dated 2/12/2010). According to him, two documents were exhibited only when ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f Board Resolution" when it was tendered before the Court, how the Hon'ble Supreme Court has dealt with the so called lacuna. There is reliance on the observations in the case of Bhupesh Rathod vs. Dayashankar Prasad Chaurasia 2022 (2) SCC 355. He read over the observations in paragraph Nos. 22 and 23. Whereas, learned Advocate Shri Satyanarayanan invited my attention to the specific lacuna as recorded in paragraph No. 7 (b) of that judgment. It deals with :- 'not signing copy of board resolution and whether it can be treated as true copy of the resolution' . Finally, the Hon'ble the Supreme Court observed as :- "If in the affidavit the witness has affirmed that there is an authorization in favour of the Managing Director that is sufficient compliance about the necessary authorization." This issue arises only when the complaint is filed by an artificial entity just like the case before us. The only difference is 'not about not signing the true copy of the resolution but about mode of proof of two documents'. Submissions for Respondent 18. Whereas, learned Advocate Shri Satyanarayanan invited my attention to the noting by the learned Magistrate which is....
X X X X Extracts X X X X
X X X X Extracts X X X X
....as follows:- (i) "When the true copy of resolution is filed on record, the original minutes books can be placed on record at the time of evidence to verify the correctness of the resolution." (ii) "True copy of a resolution produced on record can be verified from the original minutes book and original minutes book can be returned to the complainant." (iii) "It was very much easy and convenient for the complainant to produce the original minutes book on the record at the time of evidence." (iv) "But though there was sufficient opportunity with him minutes book was not brought before the Court" and (v) "Therefore, in absence of original minutes book copy of minutes of Resolution cannot be read in evidence as proof of authorization." Ratio in the judgment 22. Considering this reasoning, it will be relevant to see what are the observations in the judgments relied upon by Mr. Ponda. It is true that in case of Geeta Marine Service Pvt. Ltd. (supra), this Court has elaborately dealt with the practice being followed while recording the evidence of the complainant in the light of the provisions of Section 145 of the Negotiable Instruments A....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... documents are there. 27. I do not think not making an endorsement about perusing original of minutes book is of vital importance. It is important to say something about nature of these two documents. One is minutes book and another is board resolution. Minutes book is the primary documents and it contains recording of discussion in the meeting and then decision taken. Whereas copy of the board resolution is nothing but the reproduction of decision taken in the meeting. 28. On this background, it will relevant to consider the line of cross examination. Learned Advocate for the Respondent - Accused is not contending that either while cross-examining the witness or by way of 313 statement or by way of his own evidence, the Respondent - Accused has challenged about 'not following the procedure and has challenged about existence of these documents'. 29. When the complainant avers in his complaint that he has brought the originals and it may be returned to the complainant and certified true copies may be kept on record, what he really mean to suggest is 'let the originals may be returned to him and what is to be returned is minutes book only'. It is no doubt true that copy of a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....used it is by way of cross-examination. When these questions were not put to complainant at a subsequent stage, you cannot put him to surprise by raising that plea subsequently at the time or arguments. This objection is not of such a kind which goes to the root of the matter. This objection is about mode of proof of the document. By way of his conduct, the Respondent - Accused was not justified in raising this plea at subsequent stage. 33. Learned Magistrate was wrong in observing that the original was not produced. In fact, learned Magistrate has marked the certified copies at Exh. 11 and Exh. 12. We cannot put a blame on the learned Magistrate. The averments in the affidavit must have been considered. It is true that there is no remark that the originals are verified, but when these documents are marked as exhibits that reference was very much there in the affidavit. I do not think in the set of these facts any specific observation is required from the learned Magistrate that he has seen the originals and returned them. This Court has already observed the conduct of the Respondents in not putting questions in the cross-examination. So the findings of the trial Court cannot be....