In a landmark decision that may set to rest the controversy about the production of the original board resolution and the minutes book in cheque bouncing proceedings initiated before magistrates the Bombay high court has admitted a bunch of appeals which had questioned the practice of the lower courts. The HC judge Justice R C Chavan while admitting the appeals significantly observed: “When a copy of resolution is produced,ordinarily, it should have been relied on unless the accused took the defence that no such resolution was passed by the board or no such Power of Attorney was given by the board.
Asset Reconstruction India and several other finance companies had moved the HC to challenge orders of magistrates that required companies who had authorized a person to file proceedings of cheque bouncing cases under section 138 of Negotiable Instruments Act to produce the original minutes book in court, which often is very bulky .
Sending strong signals to the defaulters the HC judge on March 4, 2013 also directed magistrates who had based on non product of such original board resolutions of power of attorney documents, acquitted persons accused of issuing dud cheques, to ensure their presence in the High court. Advocate Ravi Goenka appearing for some finance companies had said the magistrates’ orders was against legal requirements and asked the court to decide the issue finally.
The HC in one case said, “The trial Magistrate seems to have acquitted the accused in these cases of offence punishable under Section 138 of the Negotiable Instruments Act, 1881 holding that, though the complainant produced Power of Attorney authorizing the complainant to file complaint on behalf of the Company and had placed on record certified copy of resolution dated April 7, 2010 authorizing the complainant to prosecute the complaint, the original resolution was not produced.” Justice Chavan said, “The Magistrate went on to observe that, for proving the passing of the resolution the original resolution should have been placed on the record,” and expressed his disagreement with the view of the magistrate.
more @ http://articles.timesofindia.indiatimes.com/2013-03-08/mumbai/37561147_1_dud-cheques-hc-judge-magistrates