Bombay High Court
Mr. Amol Shripal Sheth vs M/S. Hari Om Trading Co. & Ors on 3 October, 2012
Bench: T.V. Nalawade
This Order is modified/corrected by Speaking to Minutes Order
Cri. Applns. 1346,1347, 1348/05
1
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 1346 OF 2005
Mr. Amol Shripal Sheth ....Applicant.
Versus
M/s. Hari Om Trading Co. & Ors. ....Respondents.
Mr. S.B. Lakhotiya h/f. Mr. R.F. Totala, Advocate for applicant.
Mr. K.C. Sant, Advocate for respondent No. 1.
WITH
CRIMINAL APPLICATION NO. 1347 OF 2005
Mr. Amol Shripal Sheth ....Applicant.
Versus
M/s. Haryana Trading Co. & Ors. ....Respondents.
Mr. S.B. Lakhotiya h/f. Mr. R.F. Totala, Advocate for applicant.
Mr. K.C. Sant, Advocate for respondent No. 1.
WITH
CRIMINAL APPLICATION NO. 1348 OF 2005
Mr. Amol Shripal Sheth ....Applicant.
Versus
M/s. Sunderpuriya Brothers & Ors. ....Respondents.
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2
Mr. S.B. Lakhotiya h/f. Mr. R.F. Totala, Advocate for applicant.
Mr. K.C. Sant, Advocate for respondent No. 1.
CORAM : T. V. NALAWADE, J.
DATED : 3rd October, 2012.
ORDER :
1. All the three applications are filed under section 482
of Criminal Procedure Code. The petitioner from the three
proceedings is the same and the same point is involved in the
three proceedings and so they are being decided together.
2. The proceeding bearing Criminal Application No.
1346/2005 is filed against the judgment and order of Criminal
Revision No. 335/2004, which was pending in the Sessions Court,
Jalgaon. This revision was filed against the order made in R.C.C.
No. 315/2003 by Chief Judicial Magistrate, Jalgaon (hereinafter
referred to as "Magistrate" for short) on Exh. 12. The C.J.M.
allowed the complainant from the proceeding filed under section
138 of the Negotiable Instruments Act to correct the name of the
accused/present petitioner from "Amol Trilokchand Shaha" to
"Amol Shripal Seth". The Magistrate had already issued process
against the accused when the amendment was allowed.
3. The complainant has contended that the present
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petitioner was Chairman of the partnership firm, accused No. 1. It
is contended that accused No. 3 was working as a Director and
accused No. 4 was the Officer authorized by accused No. 1
concern, to sign the cheques. It is the case of the complainant
that the accused Nos. 2 to 4 are responsible for conducting the
business of accused No. 1 concern as they were doing acts like
purchasing goods, preparing bills and making payments in respect
of the goods purchased for accused No. 1. The complainant had
issued a statutory notice in this case after receiving the bank note
in respect of dishonour of cheque, but the reply was not given in
R.C.C. No. 315/2003. It is contended that the notice was received
on 14.2.2003.
4. In the statutory notice, the complainant had given
the name of present petitioner as "Amol Trilokchand Shaha". The
Revisional Court has held that the complainant probably did not
know the correct name of this accused, but there cannot be any
question of identity about this accused. The Sessions Court has
held that on the basis of document like Exh. 18, produced before
the Magistrarte, it can be inferred that the present petitioner was
working as Managing Director of accused No. 1 company. This
document was purportedly signed by the present petitioner. The
Sessions Court has held that the petitioner is the same person,
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who was named as accused No. 2 in the complaint and so
interference in the order made by Magistrate is not possible. In
the present proceeding a copy of letter signed by Company
Secretary came to be produced for petitioner to show that the
petitioner was never working as Chairman of accused No. 1
concern.
5. The advocate of the complainant has placed reliance
on three reported cases which are as under :-
(i) 2004 ALL MR (Cri) 334 Bombay High
Court [Shri. Waman Laxman Sawant Vs.
Shri. Ashok Anand Sawant & Anr.,
(ii) 2005 Bom. C.R. (Cri.) 1699 [Maan
Agro Centre Vs. E.I.D. Parry (India) Limited
& Anr., and
(iii) AIR 2001 SC 676 [M/s. Dalmiya
Cement (Bharat) Ltd., Vs. M/s. Galaxy
Traders and Agencies Ltd. and others.
In the case of Waman Sawant cited supra, this Court has held
that though there is no express provision giving power to
Magistrate to allow the amendment in the complaint, such power
is there as such power is required for very existence and survival
of the Criminal Court. In the second case of Maan Agro Centre
cited supra, this Court has held that if there is no doubt about the
identity of accused, it can be presumed that no prejudice will be
caused, if the name of the accused is not correctly mentioned in
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the complaint. In the second case one case of Rajastan High
Court reported as 2004 (2) D.C.R. 158 [Bhim Singh vs. Kan
Singh] was referred. Rajasthan High Court has held that mistakes
can be rectified by Subordinate Criminal Courts by observing that
Subordinate Courts are not powerless to do what is absolutely
necessary for dispensation of justice in the absence of any
specific provision preventing them to do so. In the third case M/s.
Dalmia Cement cited supra, the Apex Court has discussed the
object behind the provisions of sections 138 to 142 of the
Negotiable Instruments Act ("N.I. Act' for short) and it is laid down
that the interpretation of these provisions need to be made in
such a way that the object intended by the provisions is achieved.
6. For the present petitioner, reliance was placed on the
case reported as 2003 Bom.C.R. (Cri.) 1769 Bombay High
Court [Behram S. Doctor Vs. State of Maharashtra and
Anr.]. In this case, in a matter filed under section 138 of N.I. Act,
the name of the original accused was changed by allowing the
amendment from "B.S. Dastoor" to "Behram S. Doctor". This Court
held that the complaint as against Behram S. Doctor was not
within limitation as provided in section 468 of Cr.P.C. It is observed
that it was not possible to introduce the amendment after three
years from the date of cause of action for filing the complaint.
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This Court further held that the Magistrate has no power to allow
the amendment of the complaint. More cases were cited for the
present petitioner like (ii) 2000 CRI.L.J. 1579 (1) Madras High
Court [Vinayagam and others Vs. Dr. Subhash Chandran
and etc.], (iii) 2009 (2) ALL MR (JOURNAL) 61 Madhya
Pradesh High Court [Sunderdev Vs. Yogesh]. In these cases,
similar observations are made by these two High Court. Two more
cases like 1998 (7) SCC 698 [Ashok Chaturvedi Vs. Shitul H.
Chanchani] and 2008 (13) SCC 689 [Subodh S. Salaskar Vs.
Jayprakash M. Shah & Anr.] were also cited. These cases are on
different points.
7. It was submitted for the petitioner that while deciding
the case of Waman Savant cited supra, this Court (other bench)
did not refer the case of Behram S. Doctor cited supra and so
the later decision needs to be treated as per incuriam. It was
submitted that if there are two views possible, the matter needs
to be referred to a larger bench. On this point, reliance was
placed by the advocate of petitioner on following cases.
(i) 2009 (2) ALL MR (Journal) 61
[Sundervev vs. Yogesh],
(ii) 2000 CRI.L.J. 1579 (1) [Vinayagam
and others Vs. Dr. Subhash Chandran and
etc.],
(iii) 2008 (13) SCC 689 [Subodh S.
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Salaskar Vs. Jayprakash M. Shah & Anr.],
(iv) AIR 2011 SC 312 (Sidharam
Satlingappa Mhetre Vs. State of
Maharashtra & Ors.]
8. In the peculiar circumstances of the case, various
provisions of Cr.P.C. need to be seen and also interpretation of the
Special Enactment viz. N.I. Act needs to be done as per the
observations made by the Apex Court in the case of Dalmiya
Cement cited supra. This Court holds that the point involved
needs to be looked into from different angles and there is no need
to refer the case to a larger bench. If there are provisions in
Cr.P.C., which directly and indirectly give power to allow such
amendment, then it can be said that the Magistrate has not used
any inherent power as described in section 482 of Cr.P.C. and
which is not available to him. Further, if the provisions of N.I. Act,
the Special Enactment, show that it was necessary for the drawer
of the cheque itself to give the particulars for filing of the
complaint, such defence cannot be available to the persons like
the petitioner whose identity can be established during trial and
whose involvement for the offence can also be established.
9. For considering the powers of Magistrate, the relevant
provisions of Cr.P.C. first needs to be seen. The relevant portion
from section 2 (d) of Cr.P.C. in which the definition of the term
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"complaint" is given which is as under :-
"(d) "complaint" means any allegation made
orally or in writing to a Magistrate, with a view
to his taking action under this Code, that some
person, whether known or unknown, has
committed an offence, but does not include a
police report. "
Thus, in the strict sense there is no necessity to mention the
name of person who has committed the offence in the complaint.
10. In the case of 2006 CRI.L.J. 788 (Supreme Court),
[Mohd. Yousuf Vs. Smt. Afaq Jahan & Anr.], the Apex Court
has laid down that there is no particular format for complaint. A
petition containing allegations that the offence has been
committed and ending with a prayer that the culprits be suitably
dealt with, can be treated as a complaint. In the case reported as
AIR 1970 SC 1153 [Bhimappa Basappa Bhau Sannavar Vs.
Laxman Shivarayappa Samagouda and Ors.], the Apex Court
has laid down that to come within the purview of section 2 (d) of
Cr.P.C., the complaint is to fulfill following conditions.
(i) An allegation is made orally or in writing,
(ii) This allegation reveals that some person,
known or unknown, has committed the offence,
(iii) Such allegation is made to Magistrate,
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(iv) The purpose of allegation is that the
Magistrate should take action under the law.
11. Section 190 of Cr.P.C. provides that the Magistrate can
take cognizance of an offence in three ways mentioned. This
section falls under Chapter XIV of Cr.P.C., which is titled as
"CONDITIONS REQUISITE FOR INITIATION OF
PROCEEDINGS". The section 190 of Cr.P.C. reads as under :-
"190.Cognizance of offences by
Magistrates.- (1) Subject to the provisions of
this Chapter, any Magistrate of the first class,
and any Magistrate of the second class specially
empowered in this behalf under sub-section (2),
may take cognizance of any offence-
(a) upon receiving a complaint of facts
which constitute such offence ;
(b) upon a police report of such facts;
(c) upon information received from any
person other than a police officer, or upon his
own knowledge, that such offence has been
committed.
(2) The Chief Judicial Magistrate may
empower any Magistrate of the second class to
take cognizance under sub-section (1) of such
offences as are within his competence to
inquire into or try. "
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Thus, in this section also it is made clear that the complaint must
contain the facts which constitute offence and it does not show
that the name of person, who committed the offence, must be
mentioned.
12. In Chapter XV of Cr.P.C., the procedure which the
Magistrate is expected to follow after taking cognizance of the
offence is given. Sections 200 and 201 of Cr.P.C. show that there is
no mention of term 'accused', or the name of the person who
committed offence. First time, in section 202 (recently amended)
the term 'accused' is used, but it is used for limited purpose, to
see that the accused living beyond the local jurisdiction of
Magistrate is not unnecessarily harassed by calling him to the
Court. In such a case, if there is no sufficient material against the
accused to make out prima facie case against him, to proceed
against him, the Magistrate is expected to see that the complaint
is dismissed after making necessary inquiry.
13. Chapter XVI of Cr.P.C. is titled as "COMMENCEMENT
OF PROCEEDING BEFORE MAGISTRATE". The criminal
proceeding starts before the Magistrate when Magistrate takes
action under the provisions of this Chapter. Relevant provision of
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section 204 reads as under :-
"204. Issue of process.- (1) If in the
opinion of a Magistrate taking cognizance of an
offence there is sufficient ground for
proceeding, and the case appears to be -
(a) a summons-case, he shall issue his
summons for the attendance of the accused,
(b) a warrant-case, he may issue a warrant,
or if he thinks fit, a summons, for causing the
accused to be brought or to appear at a certain
time before such Magistrate or if he has no
jurisdiction himself some other Magistrate
having jurisdiction."
14. The aforesaid provisions of Cr.P.C. shows that during
inquiry, which can be made by a Magistrate under section 202 of
Cr.P.C. and during investigation which can be directed under same
section, it is necessary to ascertain, who has committed the
offence. The Magistrate takes cognizance of the offence as
provided under section 190 of Cr.P.C. and the definition of
"complaint" given in section 2 (d) of Cr.P.C. and the Magistrate
does not take the cognizance of offender under these sections. It
is not that the powers to ascertain the offender mentioned in
section 202 and 204 of Cr.P.C. come to an end after making the
order of issue process under section 204 of Cr.P.C.
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15. Section 319 of Cr.P.C. shows that the Criminal Court
has the power to proceed against person other than the accused,
if it appears from the evidence that other person not being the
accused, has committed any offence for which he needs to be
tried in the case already before the Court. In the case reported as
(2008) 9 SCC 140 [Bholu Ram Vs. State of Punjab and
Anr.], the Apex Court has laid down that the power given to
Criminal Court under section 319 of Cr.P.C. is incidental and
ancillary to main power given to Criminal Court to take
cognizance of the offence. It is observed that the power under
section 319 of Cr.P.C. is a part of normal process in the
administration of justice. The power under section 319 is
discretionary in nature. The observations of the Apex Court and
this provision of Cr.P.C. again show that the Magistrate takes
cognizance of the offence and not of the offender.
16. The aforesaid provisions of Cr.P.C. show that if the
Magistrate takes cognizance of the offence, he needs to ascertain
as to who has committed the offence. In the case like present one,
the complainant may not be in a position to get the correct name
of the accused. A tight schedule of time limit created by the
provisions of N.I. Act also needs to be kept in mind in such a case.
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Due to such tight schedule of time limit, which is mandatory in
nature, in many cases the complainant may not be able to get the
complete and correct name of the responsible persons for
dishonour of cheque at the time of filing of the complaint. So in
view of these circumstances and the aforesaid provisions of
Cr.P.C., the Magistrate can take cognizance of the offence and he
may issue process even against the persons whose name is not
correctly described by the complainant. If after appearance of
accused, the defence taken like in the present case is there, the
Magistrate needs to ascertain as to whether there is doubt about
the identity of the person described by the complainant in the
complaint and as to whether the person who appeared as accused
is the same or not. That can be done even during trial. If the
accused points out the defects in the name given in the
complaint, but he is not in a position to show that he is a different
person, he cannot take benefit of such defects. There is no
provision in Cr.P.C. providing for dismissal of the complaint due to
such defect. Complaint can be returned only under section 201 of
Cr.P.C., if the Magistrate finds that he is not competent to take
cognizance of such a case. So, if there is no doubt about the
identity of the accused described in the title and in the body of
the complaint, such person cannot get acquittal by taking such
defence. For such defence, the complaint also cannot be
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dismissed under section 203 of Cr.P.C. The burden to establish
the identity of accused and involvement of the accused in the
crime is always on the prosecution and the opportunity to
establish both the things cannot be taken away from the
prosecution, if there is such defect. Thus, in one way, it can be
said that the accused does not get any benefit due to such defect.
Then, the question arises as to what needs to be done or what
can be done in such cases to correct such mistake.
17. It is not disputed that there is no specific provision
dealing with the amendment of the complaint. There is also no
provision preventing the Court from allowing the amendment in
complaint in such a case. From the aforesaid provisions and
particularly, the fact that the Magistrate takes cognizance of the
offence, this Court holds that the Magistrate has incidental and
ancillary power to the main power of taking cognizance of offence
to allow such amendment. In view of the discussion made above,
this Court further holds that the power can be exercised before
and after taking cognizance of the offence in a case like present
one.
18. As the provisions of Special Enactment viz. N.I. Act
can supersede the general provisions of Cr.P.C., let us see whether
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there is any provision in N.I. Act, which prevents the Magistrate
from allowing the amendment or whether there is any provision
which directly or indirectly shows that the accused cannot take
benefit of such defence. Section 141 of N.I. Act reads as under :-
"141. Offences by companies.- (1) If the
person committing an offence under section
138 is a company, every person who, at the
time the 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.
(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 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
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guilty of that offence and shall be liable to be
proceeded against and punished accordingly. "
The provision of section 141 of N.I. Act shows that it has two
parts. Section 141 (1) shows that when a company commits
offence under section 138 of the N.I. Act, every person, who was
incharge and responsible for the company for the conduct of the
business of the company as well as the company, shall be
deemed to be guilty. Thus, as per the first part, mere position of a
person that he was conducting the business of the company is
sufficient, for holding him guilty and such allegations in the
complaint becomes sufficient, for proceeding against him. The
second part, section 141 (2) shows that the presumption would
arise against the Director, Manager, Secretary etc. only when it is
proved that the offence has been committed with the consent or
connivance or even negligence on the part of such person. So the
act or omission of such Director is required to be proved for
proving the guilt. In view of this position, there need to be
allegation against such person to that effect and only after that
the court can proceed against them.
19. The complainant being stranger to the company, may
not have the knowledge about the management or affairs of the
company. Section 138 (b) of N.I. Act shows that statutory notice
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needs to be given to the drawer of the cheque, to the company. In
view of this circumstance, the Director receiving notice for the
company or other office bearer receiving notice for the company,
is expected to give the name of person incharge and responsible
for the conduct of the business of company. If the office bearer
receiving notice prefers to give the reply to statutory notice, it is
not sufficient for him to only deny the responsibility, but it
becomes necessary for him to say something on behalf of the
company about the person who can be held responsible in view of
the aforesaid provision. It is already observed that in view of the
proviso to section 141 (1) of N.I. Act, the burden is on the office
bearer like the Managing Director to give such information, so that
he can show that the offence was committed without his
knowledge. These are the provisions of Special Enactment viz. N.I.
Act and they are not inconsistent with the general provisions of
Cr.P.C., which are already quoted. Thus, provisions of N.I. Act show
that there is burden of proof of defence on the person like
Managing Director of the company under the proviso of section
141 (1) of N.I. Act.
20. The provision of section 138 (b) and 141 of N.I. Act
show that along with other conditions laid down in section 138 of
N.I. Act, if the conditions laid down in these sections 138 (b) and
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141 of the Act are satisfied, the cognizance of the offence
punishable under section 138 of the N.I. Act can be taken, the
proceedings can be initiated and there can be commencement of
criminal proceeding. If the drawer of the cheque or for that
matter, Managing Director or the office bearer, who received the
notice, does not inform the name of the person responsible for
dishonour of cheque and so the name of the person responsible
for conducting the business of the company is mentioned
incorrect in the complaint, the complainant cannot be blamed for
the defects of the present nature, found in the complaint. In such
a case, the complainant cannot be made to suffer for such
defects. Further, when there are allegations as expected in
section 141 of the Act in the complaint, such allegations would
become sufficient for proceeding against the Managing Director
and other office bearer, who received the statutory notice for the
company or who has signed the cheque. In such a case, the
provisions of section 106 and 114 of the Evidence Act can be
used. In view of these provisions of Evidence Act also, such
persons cannot be allowed to take the benefit of such defect
found in the complaint. On this point, reliance can be placed on
the case reported as AIR 2007 SC 1682 [N. Rangachari Vs.
Bharat Sanchar Nigam Limited].
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21. In view of the discussion made above, this Court holds
that there is no force in the grounds raised by the petitioner in the
first proceeding. The proceeding bearing Criminal Application No.
1347/2005 is filed against the order made on Exh. 8 of R.C.C. No.
69/2003 by the C.J.M., Jalgaon, which has confirmed by Sessions
Court, Jalgaon in Criminal Revision No. 337/2005. Proceeding
bearing Criminal Application No. 1348/2005 is filed against the
order made by the C.J.M. on Exh. 8 in R.C.C. No. 68/2003, which is
confirmed by the Sessions Court, Jalgaon in Criminal Revision No.
336/2005. There is only one difference in the facts of these two
proceedings viz. the accused No. 1, company, gave reply to the
statutory notice in these two cases. However, only the
responsibility was denied by the company and the aforesaid
expected information was not supplied to the complainant. Thus,
interference is not possible in the orders made by Magistrate in all
the three cases and the decision given by Sessions Court in the
Criminal Revisions.
22. The advocate for the petitioner requested for stay to
the proceedings for some time as the petitioner wants to
challenge the order of this Court. The record shows that this Court
has granted stay, though only in respect of the petitioner during
the pendency of the proceedings. In view of the discussion made
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above, this Court has no hesitation to observe that the petitioner
is doing everything to protract the hearing of the case filed
against him. His steps are indirectly protracting the decision of the
cases, which were filed in the year 2003. In the case reported as
2005 (2) All M.R. 581 (Bombay High Court) [KSL &
Industries Ltd. Vs. Mannalal Khandelwal & Anr.], this Court
has discussed the provisions of N.I. Act and this Court has
observed that it is the duty of the Magistrate to see that such
cases are expeditiously disposed of. In view of the legislative
intent behind the provisions and the time limit fixed, this Court
has no hesitation to hold that even this Court is expected to show
the respect to the said legislative intent. The defences taken in
such a proceeding like the defence taken by the petitioner can be
dealt with in the case itself and so it is not desirable to grant stay
to the criminal proceedings. So all the three proceedings stand
dismissed.
[ T. V. NALAWADE, J. ]
ssc/
