Bye laws determine who can sue
The Act and the Rules clearly envisage that the registered bye-laws should provide provisions as to who is the Officer, who can sue or be sued, in the name of the Co-operative Society concerned says Kerala High Court in J.S.Prakash v The Thiruvananthapuram Service Cooperative Bank.
The court adds that the Rule 5(1) of the Kerala Co-operative Societies Rules, 1969, framed under the enabling provisions of the Kerala Cooperative Societies Act,1969, provides that bye-laws of the Society shall not be contrary to the provisions of the Act and the Rules framed under it.
And as per the registered bye-laws of most of the Co-operative Society, the Society can sue and be sued through its Secretary, etc.
NI 138 complaint should include copy of the bye laws
Therefore, a complaint under Section 138 of the Negotiable Instruments Act to be filed on behalf of the should necessarily be accompanied by authenticated copy of the registered bye-laws of the Co-operative Society to clearly show as to who is the authorised official as per the bye-laws of the Co-operative Society, who can institute or defend legal proceedings, and those aspects should also be asserted in the compliant as well as in the affidavit.
Ordinarily, it will be more helpful for the trial court, if the complainant Co-operative Society makes available their authenticated copy of the registered bye-laws, as to who is the Officer who can represent the said Society in all legal proceedings, so that the Magistrate can easily verify that the person through whom the complaint is presented.
Ordinarily Secretary would be the person to sue
The High Court of Kerala says that it is a matter of common knowledge that in most of the Co-operative Societies functioning within the State of Kerala in terms of the provisions contained in the Kerala Co-operative Societies Act, 1969 and the Rules framed thereunder, the Chief Executive Official of the Co-operative Society would ordinarily be the Secretary of the said Co-operative Society.
Apex Societies may have different chief executive
In very few Apex Societies, the designation of the Chief Executive Officer would be the Managing Director etc.
So, where the complaint is presented through the incumbent, who is holding the post of Secretary or who is in-charge of the post of Secretary of the Co-operative Society and the Magistrate feels that the interest of justice demands taking cognizance etc, then such a decision of the Magistrate to take cognizance in such a complaint cannot be faulted merely on the ground that the complaint or the affidavit filed under Section 200 CrPC / 225 BNSS enquiry is bereft of any materials like the authenticated copy of the registered bye-laws of the Co-operative Society.
Trial court can allow to submit the bye-laws later
Merely because, the complainant Co-operative Society does not make any such materials, will not necessarily lead to the situation that the complaint should be thrown out as being not maintainable due to the technical reason of non-filing of the bye laws alone.
If the Magistrate is convinced that some more materials are required to verify that aspect, then the Magistrate could insist for any such additional material at the time of conducting preliminary inquiry under Section200 CrPC / 223 BNSS or the inquiry under Section 202 CrPC / 225 BNSS.
Complainant can produce bye law in appropriate stage
In case, the accused is persisting with his objection regarding maintainability, then the complainant is obliged at the appropriate stage, to produce necessary materials like the authenticated copy of the registered bye-laws of the Co-operative Society to show as to who is the official, who has been empowered by the registered bye-laws to represent the Co-operative Society in legal proceedings.
Reference
J.S.Prakash v The Thiruvananthapuram Service Cooperative Bank
