Bombay High Court
Kailash Dwarkadas Mantri vs Syed Ishaq Syed Hussain & Anr on 20 October, 2016
Bench: V.K. Jadhav
cran1853.05
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 1853 OF 2005
Kailash s/o Dwarkadas Mantri
Age 42 years, Occ. Service,
R/o. M.M. Terraces, N-6, CIDCO,
Aurangabad ...Applicants
versus
1. Syed Ishaq s/o Syed Hussain,
Age 48 years, Occ. Business,
R/o. Ashti, Taluka Ashti,
District Beed
2. Mukesh Mehta
(deleted as per the order of this
Court dated 7.4.2006) ...Respondents
...
Advocate for Applicant : Mr. Ram B. Deshpande
.....
CORAM : V. K. JADHAV, J.
DATED : 20th OCTOBER, 2016
ORAL JUDGMENT:-
1. The applicant seeks quashing of criminal proceedings/
prosecution initiated vide S.C.C. No. 478 of 2002 pending before
J.M.F.C. Ashti.
2. Brief facts giving rise to the present criminal application are as
follows:-
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a) Respondent No.1 original complainant, has filed a complaint
bearing S.C.C. No. 478 of 2002 against the present applicant original
accused No.1 and one more accused before J.M.F.C. Ashti for
having committed an offence punishable under Sections 138 of
Negotiable Instruments Act (for short "N.I. Act") and Sections 420
and 114 of I.P.C. It has alleged in the complaint that the applicant
and other accused are residents of Aurangabad and they carry on
business in the name of 'Mehta Corporation Shil Products' at
Aurangabad. Respondent No.1 complainant had agreed to sell
goods of the said firm on commission basis to the general public.
However, due to sub standard quality of goods, respondent No.1
complainant had stopped to sell the goods of the firm and cancelled
the agreement entered with the said firm. However, certain amount
was due and original accused No.2 Mukesh Mehta with a view to
settle the account, issued cheque No. 0003789 dated 25.12.2001 for
Rs.21,037/- in favour of respondent No.1 complainant. It has further
alleged in the complaint that the said cheque was written by the
present applicant. Respondent No.1 original complainant had
presented the said cheque for encashment of amount on 22.3.2002
in his bank, which was returned with an endorsement "insufficient
funds". Thereafter, respondent No.1 complainant had issued legal
notice through his advocate to the present applicant and accused
No.2 Mukesh Mehta. The said notice was returned unserved as not
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accepted and therefore, respondent No.1 complainant constrained to
file complaint before the Court. The learned J.M.F.C. Ashti, after
recording statement of complainant on oath, by order dated
19.8.2002 issued process against the present applicant and accused
No.2 for the offences punishable under Section 138 of N.I. Act and
Section 114 of I.P.C.
b) On appearance, the applicant filed an application Exh.12
before the Magistrate praying therein for recalling of order of
issuance of process. However, learned Magistrate by order dated
17.6.2005 rejected the said application. Hence, this criminal
application.
3. Learned counsel for the applicant submits that even though the
allegations made in the complaint are accepted as it is, no prima
facie case is made out against the applicant for issuance of process
under Section 138 of N.I. Act r.w. Section 114 of I.P.C. It has alleged
in the complaint that the applicant has written the said cheque in the
capacity as manager of the said firm, however, the said cheque was
issued by the original accused Mukesh Mehta drawn on the account
maintained by him. In view of this, the provisions of section 138 of
N.I. Act cannot be attracted in the given set of allegations against the
present applicant and there is no question of abetting the act,
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punishable under Section 138 of N.I. Act. The question of abetting
the offence under Section 138 of N.I. Act does not arise for the
reason that Section 138 of N.I. Act makes the person liable to face
the prosecution if he issues cheque drawn on the account maintained
by him and the said cheque subsequently dishonoured.
Learned counsel in order to substantiate his submissions,
placed reliance on the judgment of Madras High Court in the case of
M. Inbarajan and another vs. Baladhandapani, reported in 1999
Cri.L.J. 75.
4. Even though respondent No.1 duly served, none appears for
him.
5. On careful perusal of complaint, it appears that in para 3 of the
complaint, it has alleged that the present applicant original accused
No.1 has written the said cheque in his own hand writing in the
capacity of Manager of the firm of which original accused No.2
Mukesh Mehta is owner and as such, he has committed offence
punishable under Section 138 of N.I. Act r.w. Sections 420 and 114
of I.P.C. Learned Magistrate by order dated 19.8.2002 issued
process against the applicant and said accused No.2 for the offences
punishable under Section 138 of N.I. Act and r.w. Section 114 of
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I.P.C.
6. Section 138 of N.I. Act speaks that where any cheque drawn
by a person on an account maintained by him with a banker for
payment of any amount of money to another person from out of that
account for the discharge, in whole or in part, of any debt or other
liability, is returned by the bank unpaid, either because of the amount
of money standing to the credit of that account is insufficient to
honour the cheque or that it exceeds the amount arranged to be paid
from that account by an agreement made with that bank, such
person shall be deemed to have committed an offence and shall,
without prejudice to any other provision of this Act, be punished with
imprisonment for a term which may be extended to two years or with
fine which may extend to twice the amount of the cheque, or with
both.
7. In the instant case, it is alleged in the complaint that the
applicant original accused No.1 has written the cheque and original
accused No.2 Mukesh Mehta has signed the said cheque, which was
drawn on the account maintained by original accused No.2 Mukesh
Mehta. Under these circumstances, there is no question of issuance
process against the applicant original accused No.1 for the offences
punishable under section 138 of N.I. Act r.w. Section 114 of I.P.C.
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Furthermore, there is no question of any abetment when the liability
as contemplated under Section 138 of N.I. Act is of the person, who
has issued the cheque drawn on the account maintained by him.
8. In the case of M. Inbarajan and another (supra), in similar
set of facts, the Madras High Court in para 7 of the said judgment,
has made the following observations:-
"7.
The allegation against the 3rd accused is that he is the
person, who abetted the complainant to become time share
holder. There is no scope for abetment of the offence under
section 138 of Negotiable Instruments Act. The question of
abetting does not arise. It is not an offence under the Indian
Penal Code. But it is made an offence under the amendment
made to the Negotiable Instruments Act. It does not make
mention of any abetting nor proposes to make persons
abetting liable for the offence. Therefore, as regards, accused
2 and 3, who are the petitioners herein, it has to be stated that
there is absolutely no basis at all to proceed against them. Of
course, the learned counsel for the petitioners has also
produced extracts from the Registrar of Companies to the
effect that as on 15.7.1994, the 2nd accused has resigned from
service and that on 9.5.1994, the 3rd accused was relieved
from service of the company."
9. The view taken by Madras High Court squarely applies to the
facts and circumstances of the present case. Thus, this criminal
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application is required to be allowed in terms of its prayer clauses
and accordingly I proceed to pass the following order:-
ORDER
I. Criminal application is hereby allowed in terms of prayer
clause "C".
II.
Criminal application is accordingly disposed of. Rule is
made absolute in the above terms.
( V. K. JADHAV, J.)
rlj/
