Binod Kumar Diwan @ Binod Diwan vs State Of U.P.
2015 Latest Caselaw 1110 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 51
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 20590 of 2015
 
Applicant :- Binod Kumar Diwan @ Binod Diwan
 
Opposite Party :- State Of U.P.
 
Counsel for Applicant :- Manish Tiwary,Ashwini Kumar Awasthi,Samit Gopal
 
Counsel for Opposite Party :- Govt. Advocate
 
Hon'ble Arvind Kumar Mishra-I,J.

Counter and rejoinder affidavits have been exchanged between the parties.

Heard learned counsel for the applicant and learned A.G.A. for State as well as learned counsel for the first informant.

By means of aforesaid application, the applicant has prayed for grant of bail in case crime no. 213 of 2013, under sections 419, 420, 409, 506, I.P.C. Police Station Jaitpura district Varanasi.

The contention has been raised on behalf of the applicant that the applicant has not committed any offence under sections 419, 420 I.P.C. by mentioning that it is admitted that the parties are trading/business personalities and between them, long series of transaction have occurred wherein goods supplied have been paid back in usual course of business. It is further submitted that it is correct that business was transacted between the parties showing liability of Rs. 98,66,954.00 against the company. The applicant claims that he being director of the company, cannot be proceeded in isolation, whereas, the case may be proceeded against the company which has not been made a party in this case. The applicant himself lodged the first information report regarding misdeed of company officials, copy whereof is annexure no. 4 to the affidavit filed in support of bail application. The dispute in question is one of civil nomenclature. The applicant is one of the directors of the company. While summing up the arguments he added that the applicant is not denying any liability which accrued out of transaction. Any amount due is subject to scrutiny between the parties and the same can be settled only when the applicant is set at liberty. The cheque in question was security cheque and not a cheque for payment of the aforesaid liability to the tune of Rs. 98,66,954.00 The director who in fact issued the cheque in question, later on ceased to operate as director for the company. The cheque series has been grossly misused by other persons for which the applicant cannot be made liable. In support of above argument, learned counsel for the applicant has placed reliance upon the decision of Apex Court rendered in the cases- S.K. Alagh Vs. State of Uttar Pradesh and others-(2008) 5 Supreme Court Cases 662 and Criminal Appeal No. 1584 of 2007- Sharad Kumar Sanghi Vs. Sangita Rane decided on 10.2.2015.

Shri Sumit Gopal learned counsel for the contesting opposite party, while controverting the aforesaid arguments, submitted that the arguments so raised are not supported by the pleading made in the bail application. The averments made in paragraphs no. 17 and 18 of the affidavit filed in support of bail application, are not borne out as averred. Factual reality put things otherwise, because a first information report was lodged in Varanasi and not in Calcutta. Earlier a writ petition was filed on behalf of two petitioners and one of the petitioners was the present applicant wherein a promise was made before the Court to pay back the aforesaid entire amount and that promise was recorded by the Court. However, during the course of proceedings, the petitioners took 'U'- turn and, after they were arrested in another case in Calcutta , they were brought to Varanasi by way of 'B' Warrant the writ petition was got dismissed "as not pressed" to the disadvantage of the first informant. This conduct is ample proof of actual bonafides of the applicant.

In so far as the argument regarding implication of the company as accused is concerned, this much can be stated that the bar is applicable in the proceedings under Section 138 of the N.I. Act which application is confined to complaint cases only and there is no bar for lodging any first information report regarding offence of cheating in cases like the present one. The first informant is public limited company and is not a private limited company. The applicant is having criminal history of criminal cases which fact is mentioned in para 29 of the affidavit itself, filed in support of this bail application.

Retorting to above reply learned counsel for the applicant submitted that latest position is that the director of the company cannot be criminally prosecuted separately from the company and criminal history shown in para 29 of the affidavit as, referred to above, is concerning the similar acts/ mistakes as committed by the applicant which have been specifically challenged by the applicant.

I have considered the rival submissions and perused the documents available on record.

It is admitted position that the applicant acted as a director of the company and allegations have specifically been made, inter alia, that the accused persons at their instance, stopped the payment of cheque so issued earlier for Rs. 98,66,954/- and when the money was specifically demanded then the accused persons also threatened to kill the officials of informant's company. The argument raised to the extent that the offence alleged is confined to act of the company, therefore, in absence of company being arrayed as party/accused, the criminal proceedings cannot be launched against the present applicant, is misconceived in as much as the instrumentality of the applicant, in the instant criminal offence cannot be clubbed with the act of company while threat to kill has been specifically alleged against the applicant in the first information report itself.

Further, the decisions of Hon'ble Apex Court rendered in the cases- S.K. Alagh Vs. State of Uttar Pradesh and others-(2008) 5 Supreme Court Cases 662 and Criminal Appeal No. 1584 of 2007- Sharad Kumar Sanghi Vs. Sangita Rane decided on 10.2.2015, cited by the learned counsel for the applicant are not applicable for the reasons that in those cases, the matter of vicarious liability of Managing Director and the company involved consideration in connection with the offences under Sections 405 and 406 I.P.C. Whereas, the factual position of the present case is distinguishable for the reason that in this case at hand cheating and threatening to kill have been imputed upon the applicant. The case of Sharad Kumar Sanghi Vs. Sangita Rane (supra) is also distinguishable for the reason that in that case proceedings arose out of a complaint case and the matter was taken up for quashing of the proceeding so initiated before the High Court wherein the High Court declined to quash the proceeding and the matter was then considered by the Apex Court. Hon'ble Apex Court, after consideration, set aside the judgment of the High Court observing that in the matter of supply of vehicle having accidented engine liability cannot be fastened on the Managing Director, himself and cheating cannot be imputed on him. The facts of this case are entirely different from the case in hand for the reason, that in this case the proceeding arose out of a complaint moved by the respondent Sangita Rane and after recording her statement under section 200 Cr.P.C., criminal law was put into motion.

In so far as argument on the jurisdictional aspect of the case is concerned to the extent that criminal prosecution cannot be launched against the applicant in isolation with the company, this much is observed that this Court being vested exclusively with the jurisdiction of hearing and disposal of the bail matters, cannot be supposed to transgress upon its jurisdictional periphery and decide the jurisdictional point as raised before this Court. Such jurisdictional point can be urged and pressed before the appropriate forum. At this juncture, this Court cannot convert itself either as a writ Court or a Court exercising power under section 482 Cr.P.C. out of a complaint moved by the respondent Sangita Rane and after recording her statement under section 200 Criminal Procedure Code, criminal law was put into motion.

In so far as argument on the jurisdictional aspect of the case is concerned-to the extent- that criminal prosecution cannot be launched against the applicant in isolation with the company, this much is to be observed that this Court being vested exclusively with the jurisdiction of hearing and disposal of the bail matters, cannot be expected to travel beyond its exclusive jurisdictional periphery and decide the jurisdictional point as raised before this Court. Such jurisdictional point can be specially urged and pressed before the appropriate forum. At this juncture, this Court cannot convert itself either as a writ court or a court exercising power under section 482 of the Criminal Procedure Code.

Reverting back to the facts of the present case, it can be observed that apart from other allegations, allegation of threatening to kill has been made in the first information report itself. And this act of threatening can not be termed an act of the company, but the alleged act of the applicant. Applicant is very much named in the first information report. Allegations made in the first information report reflect that the issuance of cheque was in lieu of goods so supplied.

In view of the aforesaid facts and circumstances of the case, I do not find it a fit case for grant of bail at this stage.

The bail application is accordingly rejected.

However, it goes without saying that the observations made while considering this bail application will not affect the proceedings on merit before the court below concerned.

Order Date :- 10.7.2015/Iss/