Hemant Chemicals vs Riverside Industries Ltd
2012 Latest Caselaw 63 Bom

                           1                            Cri. Appln.2865/2008


          IN THE HIGH COURT OF JUDICATURE OF BOMBAY,




                                                                      
                         BENCH AT AURANGABAD




                                              
                 CRIMINAL APPLICATION NO. 2865/2008


     Hemant Chemicals,




                                             
     Through Swapnil Navinchand Jakhete,
     Age : 39 years, Occu. Business,
     R/o - 67, Navi Peth, Jalgaon.
                                                                 ...Applicant.
           Versus




                                      
     1.    Riverside Industries Ltd.
                      
     2.    Jayantibhai Solanki,
           Age : 61 years, Occu. Business,
                     
     3.    Pravin Solanki,
           Age : 41 years, Occu. Business,

     4.    Jitendra Jain,
      


           Age: 41 years, Occu. : Business.
   



     5.    Telisara Ramesh P.
           Age : 47 years, Occu. Employed.

     All R/o 508, Ackme Industrial Park,





     I.B. Patel Road, Goregaon,
     East Mumbai - 63.
                                                           ...Respondents.

                                    .....





     Shri P.P. Chavan, Advocate for the applicant.
     Shilpa L. Awchar, Advocate for respondents No.1 to 5.
                                    .....


                                     CORAM : T.V. NALAWADE, J.

DATED : 03rd October, 2012.

JUDGMENT- :

1. Rule. Rule made returnable forthwith. By consent of both

the sides, heard for final disposal.

2 Cri. Appln.2865/2008

2. The proceeding is filed under section 482 of the Code of

Criminal Procedure to challenge the judgment and order of

revision No. 93/2005 which was pending in the Sessions Court,

Jalgaon. The revision was filed to challenge the order made by

Judicial Magistrate (First Class) on Exh. 33 which was filed for

recalling of issue of process order made for offence punishable

under section 138 of Negotiable Instrument Act and section 420 of

the Indian Penal Code. The Judicial Magistrate (First Class) had

refused to recall order of issue process. Both the sides are heard.

3. Though in view of the ratio of the case reported as Adalat

Prasad Vs. Ruplal (2004) Supreme Court Cases (Cri.) 1927, there

is no power with Judicial Magistrate (First Class) to recall the

order of issue process, the Sessions Court has observed that

revision against the order made by Judicial Magistrate (First

Class) at Exh. 33, which was filed for recalling the issue process

order, is tenable. It can be said that Sessions Court has

considered the order of issue process itself and it has set aside

the order of issue process made in respect of offence punishable

u/s 138 of the Negotiable Instruments Act.

4. The Sessions Court has considered arguments advanced

for the accused that the cheques were not honoured by the Bank

3 Cri. Appln.2865/2008

as the payment was stopped by the accused. Reliance is placed

by Sessions Court on the four cases which are mentioned at para

13 of the judgment and which are as follows.

(i) Bhageerathy Vs. V.Beena and Another XI-1992 (3)

Crimes, 663.

(ii) Ms. Rama Gupta and others Vs. M/s Bakeman's

Home Products Ltd., 1993 Cri.L.J. 744.

(iii) S. Ashok and another Vs. Sri. Vasudevan Moosad,

1993 Cri.L.J. 2486.

(iv) Safiq Ahmed Vs. Ahsan Halim and others

1993 Cri.L.J. 3823.

The Sessions Court has observed that as payment was stopped

and as the cheque was not dis-honoured for insufficiency of funds,

the provision of Section 138 of The Negotiable Instruments Act is

not attracted. By making such observations the order of issue

process made in respect of offence under section 138 of the

Negotiable Instruments Act is set aside by revisional Court.

5. On this point, following three reported cases were cited for

the petitioners.

(i) Goaplast Pvt. Ltd. Versus Shri Chico Ursula D Douza

and Another 2003 (2) Supreme 536.

                            4                              Cri. Appln.2865/2008


           (ii)    Goa Plast (P) Ltd. Vs. Chico Ursulu D'Souza 2003(8)




                                                                        
           Supreme 490.




                                                

(iii) M/s Modi Cements Ltd. Versus Shri Kuchil Kumar

Nandi 1998(2) Supreme 471.

In these three reported cases the Apex Court has

considered the circumstance like dishonour of cheque by reason

of 'stop payment'. Apex Court has laid down that if due to

stopping of payment the cheque is dishonoured, that case is also

covered under section 138 of the Negotiable Instruments Act, if

other requirements of Section 138 are complied with. This is

settled position of law. In view of this position of law, this Court

holds that the order made by revisional Court of setting aside

order of issue process in respect of offence punishable under

section 138 of the Negotiable Instruments Act can not sustain in

law. So, the present proceeding needs to be allowed.

6. Reliance was placed on two reported cases like -

(i) 2010 Cri.L.J. 1907 (National Small Industries

Corporation Ltd. Vs. Harmeet Singh Paintal and another).

(ii) 2011 Cri.L.J. 1626 (Harshendra Kumar D. V.

Rebatilata Koley Etc.

In these two cases, Apex Court has discussed ingredients

of provisions of Section 141 of the Negotiable Instruments Act. It

5 Cri. Appln.2865/2008

is observed by the Apex Court that in the complaint there should

be specific averments as to how the accused Director was guilty

of consent or connivance or negligence and so he was

responsible for the offence. It is observed that vicarious liability of

Director need to be pleaded and proved and it can not be

interfered. The position of other persons like Manging Director,

Director signing cheque is said to be different and as against them

there is no requirements of such pleadings. This position of law

also can not be disputed. Sessions Court has considered this

defence of the persons who had filed revision and the Sessions

Court has held that in view of pleading, this defence is not

tenable. Copy of complaint is produced on the record. At para 2

specific contentions are made as against accused Nos. 2 to 4, the

Directors that they had approached the complainant for making

request of supply of goods. The contentions are made that the

complainant had approached these accused afterwards also for

requesting them to make the payment. Thus there are contentions

that these accused were involved in the conduct of business of

the accused No.1 company. In view of these pleadings and the

fact that the decision of the Sessions court on this point is not

challenged by the accused, this Court holds that such defence is

not open to the accused at this stage. In the result, the petition is

allowed. The order made by Sessions Court in Criminal Revision

6 Cri. Appln.2865/2008

No. 93/2005 is hereby set set aside. The complaint filed under

section 138 of the Negotiable Instruments Act stands restored and

the Court is to proceed against the accused for both offences for

which the process has been issued. Rule made absolute in the

aforesaid terms.

( T.V. NALAWADE J. )

ts k/