Shri Dinesh Son Of Wasudeo Wanjari vs State Of Maharashtra
2008 Latest Caselaw 73 Bom

                                 1
             IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                   
                       NAGPUR BENCH : NAGPUR
               Criminal Writ Petition No.677 of 2007




                                           
     Shri Dinesh son of Wasudeo Wanjari,
     aged about 32 years,
     resident of Plot No. 25-A, Deshpande
     Layout, Wardhman Nagar,




                                          
     Nagpur.                            ....               Petitioner.

                              Versus

     1.   State of Maharashtra,




                              
          through Lakadganj Police
          Stastion, Ngpur.

     2.
                   
          Shri Subhashchandra son of
          son of Wireshwar Limye,
          aged about 58 years,
                  
          occupation - business,
          resident of 'Rudraksha Bhawan,
          Plot No. 116, Rail Toli,
          Ravi Shankar Ward, Civil
          Lines, Gondia.
      


     3.   Shri Mukund son of Wireshwar
   



          Limye,
          aged about 65 years,
          occupation - Retired,
          resident of Apartment No.





          G-2, Riddhi Siddhi
          Apartment, Hindustan Colony,
          near University Campus, off
          Amravati Road, Nagpur.

     4.   Shri Arun son of Namdeolal





          Aakre,
          aged adult, occupation -
          business, resident of
          Aakre Building,
          New Shukrawari,
          Nagpur.               .....                     Respondents.




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                              *****
     Mr. A. Shelat, Advocate for the petitioner.




                                                                                
     Mrs. T.D. Khade,               Additional     Public         Prosecutor            for
     respondent no.1.




                                                        
     Mr. Ambarish Joshi, Advocate for the respondent nos. 2
     and 3.
                             *****




                                                       
                                           CORAM    :     A.H.JOSHI, J.

                                           Date     :     30th June,2008.




                                          
     ORAL JUDGMENT :


     1.         Rule.
                       ig    Rule     is   made     returnable             forthwith.

Heard learned Advocate Mr. A. Shelat for the petitioner

and learned Advocate Mr. Ambarish Joshi for respondent

nos. 2 and 3. Service on respondent no.4 is not

necessary in view that no effective steps have been

taken to serve him.

2. Petitioner had filed a complaint under Section

138 of the Negotiable Instruments Act.

3. Trial Court has ordered issue of process by

order dated 28th August, 2006. This order of issue of

process was challenged by accused by filing a Revision

Application under Section 397 of Criminal Procedure

Code in Sessions Court.

4. Learned Sessions Court allowed the Revision

Application and dismissed the complaint by quashing the

order of issue of process.

5. On perusal of the Judgment, it reveals that

the learned Judge found that it was not a case of issue

of cheque for a debt, in as much that it was a cheque

issued by Company under the signatures of its Chairman

and Directors, in the name of the same Company, i.e.,

for all purposes, it was a cheque in own name.

6. This Judgment is challenged by filing the

present Writ Petition.

7. Learned Advocate for the petitioner urged that

it was wholly unnecessary on the part of the Revisional

Court to have gone into the facts and merits of the

case, further that the Revision would not lie in the

light of observations contained in two reported

judgments in cases of [1] Adalat Prasad Vs. Rooplal

Jindal & others [2004 (4) Mh. L. J. 274], and [2]

Subramanium Sethuraman Vs. State of Maharashtra &

another [(2004) 13 SCC 324].

8. Learned Advocate then tried to distinguish his

case from the reported Judgment of this Court in case

of V.K. Jain & ors. Vs. Pratap V. Padode & another

[2005 (3) Mh. L.J. 778]. Relying on reported Judgment

of Hon'ble Supreme Court in case of Aneeta Hada Vs.

M/s. Godfather Travels & Tours Pvt. Ltd. [2008 (3) ALL

MR 881], learned Advocate further argued that whether a

case could be filed without arraying the Company as a

party is a matter of reference to Larger Bench, and in

the light of this situation, he has made out a case for

entertaining present Writ Petition, grant of relief by

way of setting aside impugned order and restoring the

case for hearing and disposal according to law.

9. In order to test the submissions, this Court

has perused the record with the petition and reply.

10. As far as the tenor and description of the

cheque, subject-matter, is concerned, it has been

narrated in paragraph no.5 of the Judgment of the

Revisional Court. Factual correctness of this paragraph

is not in dispute. It shall be better to refer by

quotation para 5 of the said Judgment which reads as

follows:-

"5. It will be clear from the impugned cheque which is document no.4 in this case that the cheque no. 985807 for

Rs.1,00,00,000/- dated 24-12-2005 was issued by the Chairman cum Managing Director of Gas Suvidha Petrochemical Ltd., to M/s. Gas Suvidha Petrochemical

Ltd. It was an account payee cheque. The accused no. 2 and 3 said to have signed on this cheque."

[quoted from page Nos. 22 and 23 of the Writ Petition

Paper-book].

11.

It is then seen that on question of law, the

learned Sessions Judge has dealt with in para 8 about

the question of locus standi of the complainant to file

complaint against other Directors of a Company when the

complainant claims that he was still a Director of same

Company. The discussion in this regard as is seen in

paragraph 8 reads as follows:-

"8. It is further to be noted that there is no even averment in the complaint to point out that the complainant was authorised to file complaint. The cheque was issued in the name of the company. When the complainant himself branded as

one of the Director of the said Company, he could also be prima facie held liable to be arrayed as accused along with accused no.2 and 3. In what capacity the complainant could file complaint regarding the cheque which was account payee and was drawn in the name of said company of which complainant besides accused no. 2 and 3 being directors could file complaint is

neither made clear nor understandable. ....."

[quoted from page 24 of the writ petition paper-book]

12. Coming to the question of maintainability of

Revision Application, this Court finds that in the

judgments in cases of Adalat Prasad Vs. Rooplal Jindal

& ors. [supra] and Subramanium Sethuraman Vs. State of

Mah. & another [supra], the question before Hon'ble

Supreme Court about correctness of law laid down in

case of K.M. Mathew was relating to jurisdiction of the

Magistrate to recall the process.

13. What is laid down in case of Adalat Prasad has

been reiterated in case of Subramanium Sethuraman,

where attempt was made to persuade Hon'ble Supreme

Court that the procedure in a warrant case would be

different, which contention has been declined.

14. In case of V. K. Jain & ors. Vs. Pratap V.

Padode & another [supra], at paragraph 27, this Court

has in categoric terms held that a Revision Application

would lie against an order of issue of process in the

background of cases of Adalat Prasad and Subramanium

Sethuraman. Learned Advocate Mr. Shelat submits that,

while deciding V.K. Jain's case, contents of para 16 of

the judgment of Hon'ble Supreme Court in case of Adalat

Prasad are not properly considered by this Court. For

ready reference, Para 16 of case of Adlat Prasad is

quoted below:-

"16. It is true that if a Magistrate takes cognizance of an offence, issues

process without there being any allegation against the accused or any material

implicating the accused or in contravention of provision of Sections 200 and 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused

can obtain at that stage is not by invoking section 203 of the Code, because the Criminal Procedure Code does not contemplate a review of an order. Hence in the absence of any review power or inherent

power with the subordinate criminal Courts, the remedy lies in invoking section 482 of

Code."

Apart from para 16, it is not shown that any other

discussion or finding, rendered in Adalat Prasad's case

is not considered.

15. It is seen from paras 10 and 16 of V.K. Jain's

case that this Court has given due consideration and

has dealt with the dictum given in cases of Adalat

Prasad as well as Subramanium.

16. It is as vivid as illuminated in day light

that the question before the Hon'ble Supreme Court was

whether Mathew's case laid down a correct law. The

question was not as to whether in order to challenge an

order of issue of process, Revision Application under

Section 397 or 401 of Criminal Procedure Code would be

barred in contrast with jurisdiction of this Court

under Section 482 of Criminal Procedure Code.

17.

Learned Advocate for the petitioner wants this

Court to read between the lines and infer from para 16

of the judgment in case of Adalat Prasad and hold that

the order of issue of process is a holy cow and beyond

reach, except under Section 482 of Criminal Procedure

Code.

18. In case the submission of learned Advocate Mr.

Shelat is accepted, its essential fallout is to render

the jurisdiction under Sections 397 and 401 of Criminal

Procedure Code unavailable. This submission would

create a barrier on the revisional jurisdiction which

is not spelt out from the language of these Sections or

any precedent.

The submission that case of V.K. Jain does not

lay down law correctly is without any foundation, and

is rejected.

19. In so far as the judgment in case of Aneeta

Hada Vs. M/s. Godfather Travelrs & Tours Pvt. Ltd., is

concerned, this Court has noted from impugned judgment

that Revisional Court has not dismissed the complaint

on the ground that 'the Company was not made a party,'

though it was a case of dishonur of cheque issued by

and on behalf of Company.

20. The emphasis given by Sessions Court, while

dismissing the complaint is on the fact that cheque was

issued by the Company through Chairman with Director in

the name of the very Company, and has been dishonoured,

and this dishonour is being used by another Director of

the same Company.

21. Thus, the facts leading to dismissal of

complaint are drastically different. The question of

law involved in case of Aneeta Hada Vs. Godfather

Travels & Tours Pvt. Ltd. is not even remotedly

involved in the case.

22. By way of last limb of submission, learned

Advocate Mr. Shelat has argued that while holding that

the complaint is not maintainable, and on going into

factual details, the learned Sessions Judge has

actually stepped into enquiry of facts and merits of

the case.

the discussion, which

Upon testing this submission, it is seen that

has led to dismissal of case

pertains to the conclusions which ex facie emerge from

the tenor of cheque, and when on what prima facie

appears from the contents of complaint and documents

produced and if it reveals that allegations do not

conform to the bare description of offence, this type

of scrutiny does not amount to adjudication of facts.

This submission is raised without any factual

foundation for the ground urged.

23. In these premises, the petitioner has failed

to make out any case to show that the judgment of

Revisional Court was erroneous and rendered without

jurisdiction.

24. Revisional Court was, thus, within its bounds

and has not pre-judged the facts before trial, as

alleged. The Revisional Court has ruled on the facts

which were ex facie emerging and no formal proof of

fact of tenor of cheque was required, as the said

document was relied upon by complainant himself.

25. It is seen that the Court issuing process has

noted one after other dates material for Section 138 of

the Negotiable Instruments Act, and has only reckoned

the days of limitation.

26. The Magistrate has not touched the aspect

which could have occurred to the mind of the Judge by

bare perusal of the cheque that it was drawn by the

Company in its own name, was a crossed and Account

Payee cheque.

27. The order of issue of process, on the other

hand, reveals to be a product of total non-application

of mind.

28. The Magistrate could have noted that bare

perusal of cheque does not, in any manner, suggest that

it was issued in favour of the complainant. On this

ground alone as well, complaint was liable to be

dismissed.

29. In the premises discussed in the foregoing

paragraphs, it would be uncharitable to urge, much less

to hold, that the Revisional Court

overstepped or gone into appreciation of evidence and has either

pre-judged the issue before trial.

30. This Court is satisfied that the Revisional

Court has arrived at conclusions which optionlessly

fell from the facts on record and the Revision

Application has been rightly allowed.

31. In the circumstances, Writ Petition does not

merit interference, and Rule is discharged.

JUDGE

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