Seema W/O Prakash Wanjari vs The State Of Mah Thr Pso ...
2017 Latest Caselaw 6435 Bom

                       Judgment

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                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                  NAGPUR BENCH, NAGPUR

                             CRIMINAL APPLICATION (APPLN) NO.223 OF 2009

                       Seema w/o Prakash Wanjari,
                       Aged about 36 years, Occupation
                       : Government Service, Resident
                       of 10, Netaji Nagar, Old Pardi
                       Naka, Bhandara Road, Nagpur.
                       (Original Accused No.2).                                ..... Applicant.

                                                       ::   VERSUS   ::

                       1. The State of Maharashtra,
                       Through Police Station Officer,
                       Sadar, Nagpur.


Amendment carried 
                       2. Centurion Bank Limited, A
 out as per Court's 
order dated 29.7.09
                       Company registered under the 
                       Companies Act, 1956 through its 
                       Authorized Officer/Assistant
                       Manager Mr. Jaiprakash s/o 
                       Shalikram Tiwari, Aged about 38
                       Years, R/o Flat No.16, MHADA,
                       Near Bor Nala, Katol Road, 
                       Nagpur.
                       (Original Complainant)

                       H.D.F.C. Bank Limited, A Company
                       registered under the Companies Act,
                       1956, through its Authorized Officer/

                                                                                                  .....2/-



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Manager Shri Jaiprakash s/o Shalikram
Tiwari, r/o Pokaram Towers, Mahadeo
Mandir Road, Near Sangivani Hospital,
Postal Ground, Yeotmal, P.C. 445 001.
Tahsil & District Yeotmal.                              ..... Non-applicant.

================================================================
          Shri M.P. Khajanchi, Counsel for the applicant.
          Shri I.J. Damle, Addl.P.P. for non-applicant No.1/State.
          None for non-applicant No.2.
================================================================


                                CORAM : V.M. DESHPANDE, J.

                                DATE    : AUGUST 22, 2017.

ORAL JUDGMENT

1. Heard learned counsel Shri M.P. Khajanchi for the

applicant, learned Additional Public Prosecutor Shri I.J.

Damle for non-applicant No.1/State. None appears for non-

applicant No.2 though duly served.

2. The present application under Section 482 of the

Code of Criminal Procedure was filed before this Court in the

year 2009 for the following reliefs:

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i) quash and set aside proceedings initiated by

respondent No.2 Centurion Bank Limited against

the applicant vide Criminal Complaint Case

No.1205/2005 (Centurion Bank Limited vs. M/s. P.V.

Wanjari Contractors & Transport Co. & Another)

ii) pending final disposal of the present

application, grant interim order and thereby stay

the further proceedings of Criminal Complaint

Case No.1205/2005 (Centurion Bank Limited vs.

M/s. P.V. Wanjari Contractors & Transport Co. &

Another)

iii) grant ad-interim order in terms of prayer

clause (ii) above.

iv) allow this application with costs;

v) grant such further and other reliefs as

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circumstances of the case may warrant and the

applicant is found entitled to.

3. The criminal complaint under Section 420 read

with Section 34 of the Indian Penal Code and Section 138 read

with Section 142 of the Negotiable Instruments Act, 1881 was

filed by Centurion Bank Limited registered under the

Companies Act, 1956 against the present applicant who was

shown as accused No.2 and against M/s. P.V. Wanjari

Contractors & Transport Company, through its Proprietor

Prakash Vitthal Wanjari.

4. This Court, on 27.2.2009, issued notices in the

present application. Order dated 29.7.2009 shows that non-

applicant No.2, in the present application, i.e. original

complainant has merged with H.D.F.C. Bank Limited. On the

said day, this Court Admitted the present application and

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issued Rule. Prior to issuing the Rule, leave was granted to

the applicant to amend the cause title in substituting the

H.D.F.C. Bank Limited in place of original non-applicant No.2.

In spite of service, no appearance was put on behalf of newly

added non-applicant No.2.

5. As per the complaint, both accused availed loan

facility from the complainant to the extent of Rs.1,30,000/-.

According to the complainant, the present applicant was a co-

borrower. The complaint further recites that total 6 cheques

for amount of Rs.4,635/- each dated 5.7.2004, 5.8.2004, 5.9.2004,

5.10.2004, 5.11.2004, and 5.12.2004 were issued by accused No.1

Prop. Prakash Vitthal Wanjari of M/s. P.V. Wanjari

Contractors & Transport Company. The complaint also states

that the said cheques were issued from the account duly

maintained by accused No.1. However, those cheques were

returned for insufficient funds. In spite of statutory notice,

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which were duly served upon the accused persons, failed to

pay the amount of disputed cheques. Thus, an offence was

complete and, therefore, a complaint was lodged.

6. On 21.11.2006, though the complaint was filed for

the offence punishable under Section 420 read with Section 34

of the Indian Penal Code and Section 138 read with Section

142 of the Negotiable Instruments Act, 1881, learned Judicial

Magistrate First Class, Court No.3 at Nagpur, after perusing

the complaint and after verification of documents, issued

process only for the offence punishable under Section 138 of

the Negotiable Instruments Act, 1881.

7. Primary submission of learned counsel Shri M.P.

Khajanchi for the applicant is that the cheques, in question,

are not signed by the present applicant. He also points out

that the complaint lacks from pleadings that the present

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applicant was having any control either directly or indirectly

over business of accused No.1 M/s. P.V. Wanjari Contractors &

Transport Company. Learned counsel relies on an

authoritative pronouncement of the Honourable Apex Court

in the case of Green Earth Asphalt and Power Private Limited

..vs.. State of Maharashtra, through PSO and others, reported

at (2008)8 SCC 278 to buttress his point that in view of lack of

pleadings about the applicant, the complaint against the

applicant was required to be quashed. From cause title of the

complaint, it is clear that accused No.1 M/s. P.V. Wanjari

Contractors & Transport Company is not a partnership firm

but it is a proprietary concern of Prakash Vitthal Wanjari who

happened to be the husband of the present applicant. The

only assertion in the complaint against the present applicant

is that she is one of co-borrowers of the loan facility.

8. The rights of a creditor vis-a-vis a debtor are

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governed by the Indian Contract Act, 1872. The remedy is

available for creditor to recover amount from co-borrower.

However, creditor cannot be allowed to pursue remedies in

the criminal law in absence of anything on record to show

that co-borrower has any control or the cheques, in question,

were also issued at the behest of such co-borrower.

9. Admittedly, the cheques are not signed by the

applicant. The said are signed by the proprietor of M/s. P.V.

Wanjari Contractors & Transport Company. Further, the

complaint totally lacks from pleadings in respect of averments

of the role of the present applicant in respect of either

issuance of the disputed cheques or she having any control

over the business.

10. In that view of the matter, the present criminal

application is required to be allowed to the extent of the

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present applicant only. Consequently, I pass the following

order.

ORDER

i) Rule is made absolute in terms of prayer clause

(i) of the present criminal application qua the

present applicant only.

ii) With this, the criminal application is disposed

off.

JUDGE

!! BRW !!

...../-