apeal129of2010.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 129 OF 2010
Uttamchand Maganlal Bagade,
Aged about 58 years,
occupation : Businessman,
Resident of Risod, Tahsil Risod,
District Washim ...APPELLANT
...V E R S U S...
1 The State of Maharashtra,
2 Gopinath Kaluji Patil,
Aged about 63 years,
Occupation : Ex-Managing Director
of Shri Balaji Sahakari Sakhar
Karkhana Limited, Keshao
Nagar, presently residing at
Malegaon,
Tahsil Malegaon, District Nasik ..RESPONDENTS
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Mr. Anil Mardikar, learned senior counsel for the Appellant.
Ms. T.H. Udeshi, learned Public Prosecutor for respondent 1.
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CORAM
:ROHIT B. DEO, J.
DATE :28.11.2017 ORAL JUDGMENT:
Exception is taken to the judgment and order dated 31.3.2009, in Special Criminal Case 408 of 2001, delivered by the Judicial Magistrate First Class, Risod, by and under which, ::: Uploaded on - 28/11/2017 ::: Downloaded on - 30/11/2017 01:54:10 ::: apeal129of2010.odt 2 respondent 2 is acquitted of offence punishable under section 138 of the Negotiable Instruments Act, 1881 ("Act" for short). 2 Heard Shri. Anil Mardikar, the learned senior counsel for the appellant and Smt. T.H. Udeshi, the learned Additional Public Prosecutor for the respondent / State. 3 The learned senior counsel Shri. Anil Mardikar canvased several submissions in an anxiety to demonstrate that the judgment of acquittal is against the weight of evidence and that the learned Magistrate was not alive to the import and implication of the statutory presumption under section 139 of the Act.
4 During the course of hearing, since I noticed that Shri Balaji Sahakari Sakhar Karkhana Limited, concededly a society registered under the provisions of the Maharashtra Cooperative Societies Act, 1960 (Cooperative Societies Act) was not arrayed as an accused, Shri. Anil Mardikar, the learned senior counsel was requested to satisfy the Court that the complaint instituted under section 138 of the Act against the office bearer of the said society was maintainable. In order to keep the record straight, although, ::: Uploaded on - 28/11/2017 ::: Downloaded on - 30/11/2017 01:54:10 ::: apeal129of2010.odt 3 this aspect was neither raised nor considered in the proceedings before the learned Magistrate, nonetheless, since concededly the cheque was issued to discharge the existing liability of the said cooperative society which, according to the complainant had purchased electrical machineries and spare parts on credit from the complainant, the learned senior counsel was requested to address me on the issue of maintainability of the complaint. 5 In all fairness, Shri. Anil Mardikar, submits that the law is not res-integra, and is decisively settled inter-alia by the judgment of the Apex Court in Aneeta Hada Vs. Godfather Travels & Tours Private Limited, (2012) 5 SCC 661 and Charanjit Pal Jindal Vs. M/s. L.N. Metalics, 2015 ALL MR Cri) 4072 (S.C.).
6 A society registered under the Cooperative societies Act is a body corporate in view of the provisions of section 36 which read thus:-
"The registration of a society shall render it a body corporate by the name under which it is registered, with perpetual succession and a common seal, and with power to acquit, hold and dispose of property, to enter into contracts, to institute and defend suits and other legal ::: Uploaded on - 28/11/2017 ::: Downloaded on - 30/11/2017 01:54:10 ::: apeal129of2010.odt 4 proceedings and to do all such things as are necessary for the purpose for which it is constituted".
Section 141 of the Act which deals with the offences of companies reads thus:-
"(1) If the person committing an offence under section 138 is a company, every person who, at the time of offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence:
[Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter.] (2) Notwithstanding anything contained in sub-section (1), where any offence under this Act, has been committed by a company and it is proved that the offence ::: Uploaded on - 28/11/2017 ::: Downloaded on - 30/11/2017 01:54:10 ::: apeal129of2010.odt 5 has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation: For the purposes of this section
(a) "company" means any body corporate and includes a firm or other association of individuals; and
(b) "director", in relation to a firm, means a partner in the firm".
7 Explanation (a) to Section 141 of the Act read with section 36 of the Cooperative Societies Act, provides that a cooperative society is a company for the purposes of section 141 of the Act.
8 In Aneeta Hada Vs. Godfather Travels & Tours Private Limited, (2012) 5 SCC 661, the Apex Court concludes thus:
"59. In view of aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offnders can only be brought in the drag-net ::: Uploaded on - 28/11/2017 ::: Downloaded on - 30/11/2017 01:54:10 ::: apeal129of2010.odt 6 on the touchstone of vicarious liability as the same has been stipulated in the provision itself. We say so on the basis of the ratio laid down in C.V. Parekh which is a three-Judge Bench decision. Thus, the view expressed in Sheoratan Agrawal does not correctly lay down the law and, accordingly, is hereby overruled. The decision in Anil Hada is overruled with the qualifier as stated in para
51. the decision in Modi Distillery has to be treated to be restricted to its own facts as has been explained by us hereinabove".
9 The judgment of the Apex Court in Aneeta Hada Vs. Godfather Travel &Tours Private Limited is followed by the Apex Court in Charanjit Pal Jindal Vs. M/s. L.N. Metalics and it would be apposite to refer to the following observations in the said judgment:-
"11. From the aforesaid finding, we find that after analyzing all the provisions and having noticed the different decisions rendered by this Court, the three Judges' Bench arrived at the irresistible conclusion that for maintaining the prosecution u/s 141 of the Act, arraigning a company as an accused is imperative. Hence, in this case, we find no reason to refer the matter to the larger Bench".
"12. In the present case, only the appellant was ::: Uploaded on - 28/11/2017 ::: Downloaded on - 30/11/2017 01:54:10 ::: apeal129of2010.odt 7 impleaded as an accused. In that view of the matter, we are of the view that complaint with respect to the offence u/s 138 read with 141 of the Act was not maintainable following the decision in Aneeta Hada, [2012 ALL SCR 1424] (supra). We set aside the judgment dated 17.4.2010 passed by the Trial Court, order dated 27.5.2011 passed by the Appellate Court and the impugned judgment dated 9.11.2012 passed by the High Court of Orissa, Cuttaack in Criminal Revision No. 467 of 2011. The appellant stands acquitted".
10 In the light of the authoritative enunciation of law by the Apex Court, I have no hesitation in opining that since the cooperative society was not arrayed as an accused, the complaint instituted against the office bearers of the society was not maintainable.
I do not find any compelling reason to interfere with the judgment of acquittal. The appeal deserves to be rejected, and is accordingly rejected.
JUDGE RS Belkhede ::: Uploaded on - 28/11/2017 ::: Downloaded on - 30/11/2017 01:54:10 :::