Bombay High Court
Ppd vs The State Of Maharashtra on 12 October, 2010
Bench: A.P. Bhangale
PPD
1
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IN THE HIGH COURT OF JUDICATURE AT MUMBAI
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.3218 OF 2009
Vilas Yeshwant Mitkar. ..Applicant.
Vs.
The State of Maharashtra
and 3 Ors. ..Respondents.
....
Mr.Prakash D. Dave, Advocate for the Applicant.
Mrs.A.S. Pai, A.P.P. for the State.
....
CORAM : A. P. BHANGALE, J.
DATED : 12TH OCTOBER, 2010
ORAL ORDER :
1. Heard.
2. The learned Advocate for the applicant states that affidavit of
service has been filed and notices of this application have been served
on all the respondents concerned by registered post as well as under
postal certificate but none appeared for respondent Nos.2 to 4.
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3. The applicant by this application under Section 482 of Cr.P.C.
questions the order dated 16.7.2008 which was passed below
application (Exhibit-70) passed by the learned Metropolitan
Magistrate, 13th Court, Dadar as also the order dated 20.3.2009
passed by the learned Ad-hoc Additional Sessions Judge, C.R. No.1,
Sewree, Mumbai in Criminal Revision Application No.405 of 2008.
4. It appears that while Case No.407/SS/2004 arising from
complaint made under Section 138 of the Negotiable Instruments Act
was part-heard, in the course of cross-examination of the defence
witness the complainant had succeeded to bring on record an
admission that the Managing Director at the relevant time was
respondent No.4 Shri Dilip Nevatiya for M/s. Sandeep Polymers Pvt.
Ltd., the company from whom the complainant is seeking to recover
outstandings of his retirement benefits which were granted in the
form of three cheques which were dishonoured. After the evidence
was brought on record that respondent No.4 was the Managing
Director of the said company at relevant time, an application was
moved by the complainant before the learned trial Magistrate to
indict respondent No.4 also, as admittedly he was the Managing
Director at relevant time when cheques were issued. Learned trial
Magistrate on the ground that there was an order passed by this
Court to discharge respondent No.4, held that, it would not be proper
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to issue summons against him under Section 319 of Cr.P.C. and for
this reason the application was rejected.
5. The complainant then moved in Criminal Revision Application
No.405 of 2008 which was also rejected on the identical ground that
this Court had discharged the proposed accused earlier and,
therefore, he cannot be indicted as an accused again. The learned
Ad-hoc Additional Sessions Judge expressed view that the learned
trial Magistrate has rightly rejected the application under Section 319
of Cr.P.C..
6. It does appear that earlier this Court by order dated
20.12.2006 in Criminal Application No.1274 of 2006 considering the
averments made in the complaint and requirements of Section 141 of
the Negotiable Instruments Act, decided to quash the process as
against respondent No.4 herein. The order for issuance of process
dated 11.4.2000 passed by the learned trial Magistrate, therefore,
was quashed, as there were no necessary averments in the complaint.
7. Learned Advocate for the applicant submitted that although
process was quashed earlier by this Court, the learned trial Magistrate
ought to have considered the evidence which is brought on record in
the form of admissions in the cross-examination of the defence
witness in clear terms that respondent No.4 was the Managing
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Director and was looking after the day to day affairs of the company
at the relevant time when cheques were issued. That being so,
notwithstanding the earlier order passed by this Court to quash the
process issued earlier for want of necessary averments in the
complaint in this regard, the necessary evidence has been brought on
record to that effect and, therefore, in view of Section 319 of Cr.P.C.
the learned trial Magistrate ought to have issued notice under Section
319 of Cr.P.C. to the proposed accused as Section 319 Cr.P.C. would
operate in the course of trial of an offence as soon as there is
'evidence' within the meaning of Section 319 of Cr.P.C. Section 3 of
the Evidence Act defines 'evidence' to means and includes :--
(1) all statements which the Court permits or requires to be
made before it by witnesses, in relation to matters to fact under
inquiry; such statements are called oral evidence;
(2) all documents including electronic records produced for
the inspection of the Court; such documents are called
documentary evidence.
8. Learned Advocate made reference to ruling in Municipal
Corporation of Delhi Vs. Ram Kishan Rohtagi and Ors. AIR 1983
SUPREME COURT 67 in order to submit that the power under
Section 482 of Cr.P.C. can be exercised and the learned trial
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Magistrate can be directed to issue notice to the proposed
accused in view of evidence brought on record in the course of
cross-examination of defence witness in the pending Criminal Case. It
is contended that the power under Section 319 of Cr.P.C. is available
to all the Courts and learned trial Magistrate ought to have
considered that there was sufficient evidence indicating involvement
of respondent No.4 in the offence which is punishable under Section
138 of the Negotiable Instruments Act, particularly, in view of Section
141 of the Negotiable Instruments Act. The Manager or the Managing
Director who was at the relevant time, when cheques were issued,
was incharge of the company or was responsible to the company for
conduct of the company, is also deemed to be guilty for the offence
and is liable to be proceeded against and punished accordingly. It is
also submitted that merely because earlier process against the
respondent No.4 was quashed by this Court would not be a ground
for him to escape from prosecution once 'evidence' has been brought
against him before the trial Magistrate.
9. The learned Advocate for the applicant also referred to the
ruling in Dr.S.S. Khanna Vs. Chief Secretary, Patna & another, AIR
1983 SUPREME COURT 595 in order to submit that at later stage of
the trial summons can be issued against the person who may be
involved in the offence though not indicted earlier as an accused.
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10. Section 319 of Cr.P.C. allow the trial Court to proceed against
any person although not indicted as an accused earlier, if it appears
that such a person, who is proposed to be indicted by the
complainant, appears to have committed an offence and could be
tried together along with other accused already indicted. If such
proposed accused is not attending the Court, he may be summoned
before the Court for the purpose of enquiry into accusations made
against him or for trial, as the trial Court may deem fit, so as to
proceed against him.
11. I think the learned trial Magistrate pursuant to application
made under Section 319 of Cr.P.C. on the basis of the evidence led
before the Court, could have issued at least show-cause notice against
the proposed accused calling upon him to show-cause as to why he
should not be indicted in the pending trial as an accused when
'evidence' has been brought on record according to the complainant
to make the proposed accused also answerable to the accusations
made by the complainant in the course of evidence, led in the trial.
Word "evidence" occurring in sub-section is used in comprehensive
and broad sense which would also include the material collected by
the investigating officer and the material or evidence which comes
before the Court and from which the Court can prima facie conclude
that person not arraigned before it is involved in the commission of
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crime. It is not necessary for the Court to wait until the entire
evidence is collected for exercising the said powers.
12. The proceedings under Section 138 of the Negotiable
Instruments Act are prima facie against the accused who is signatory
to the cheque which is dishonoured and in respect of which demand
notice has been issued but the amount of cheque remained unpaid.
However, in case of company, the liability by way of statutory fiction
makes any person who was at the time of offence, incharge of and/or
was responsible to the company for the conduct of the business of the
company as well as the company, since the company is answerable for
dishonour of cheque when it was issued on account maintained by
the company for payment of the cheque amount to the payee in
respect of cheque which was dishonoured. Since there are statutory
presumptions which are required to be rebutted, the burden of proof
does shift from complainant to the accused and vice versa.
Considering the legal position, therefore, I think that the learned trial
Magistrate ought to have considered the relevant provisions of the
Negotiable Instruments Act as well as Section 319 of Cr.P.C. as sought
to be invoked against the proposed accused on the basis of evidence
led in the trial and ought to have issued show-cause notice against
the proposed accused calling upon him to show cause as to why he
shall not be indicted as an accused and then to pass an appropriate
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order.
13. For these reasons, therefore, the impugned orders are
quashed and set aside. The learned trial Magistrate shall consider the
application preferred under Section 319 of Cr.P.C. read with relevant
provisions of the Negotiable Instruments Act as also with reference to
evidence led before the trial Magistrate and in accordance with law.
Application is allowed accordingly.
(A. P. BHANGALE, J.)
