Bombay High Court
Uttamchand Maganlal Bagade vs The State Of Maharashtra And Anr on 28 November, 2017
Bench: R. B. Deo
apeal129of2010.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 129 OF 2010
Uttamchand Maganlal Bagade,
Aged about 58 years,
occupation : Businessman,
Resident of Risod, Tahsil Risod,
District Washim ...APPELLANT
...V E R S U S...
1 The State of Maharashtra,
2 Gopinath Kaluji Patil,
Aged about 63 years,
Occupation : Ex-Managing Director
of Shri Balaji Sahakari Sakhar
Karkhana Limited, Keshao
Nagar, presently residing at
Malegaon,
Tahsil Malegaon, District Nasik ..RESPONDENTS
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Mr. Anil Mardikar, learned senior counsel for the Appellant.
Ms. T.H. Udeshi, learned Public Prosecutor for respondent 1.
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CORAM
:ROHIT B. DEO, J.
DATE
:28.11.2017
ORAL JUDGMENT:
Exception is taken to the judgment and order dated
31.3.2009, in Special Criminal Case 408 of 2001, delivered by the
Judicial Magistrate First Class, Risod, by and under which,
respondent 2 is acquitted of offence punishable under section 138
of the Negotiable Instruments Act, 1881 ("Act" for short).
2 Heard Shri. Anil Mardikar, the learned senior counsel
for the appellant and Smt. T.H. Udeshi, the learned Additional
Public Prosecutor for the respondent / State.
3 The learned senior counsel Shri. Anil Mardikar
canvased several submissions in an anxiety to demonstrate that
the judgment of acquittal is against the weight of evidence and
that the learned Magistrate was not alive to the import and
implication of the statutory presumption under section 139 of the
Act.
4 During the course of hearing, since I noticed that Shri
Balaji Sahakari Sakhar Karkhana Limited, concededly a society
registered under the provisions of the Maharashtra Cooperative
Societies Act, 1960 (Cooperative Societies Act) was not arrayed as
an accused, Shri. Anil Mardikar, the learned senior counsel was
requested to satisfy the Court that the complaint instituted under
section 138 of the Act against the office bearer of the said society
was maintainable. In order to keep the record straight, although,
this aspect was neither raised nor considered in the proceedings
before the learned Magistrate, nonetheless, since concededly the
cheque was issued to discharge the existing liability of the said
cooperative society which, according to the complainant had
purchased electrical machineries and spare parts on credit from
the complainant, the learned senior counsel was requested to
address me on the issue of maintainability of the complaint.
5 In all fairness, Shri. Anil Mardikar, submits that the
law is not res-integra, and is decisively settled inter-alia by the
judgment of the Apex Court in Aneeta Hada Vs. Godfather
Travels & Tours Private Limited, (2012) 5 SCC 661 and
Charanjit Pal Jindal Vs. M/s. L.N. Metalics, 2015 ALL MR Cri)
4072 (S.C.).
6 A society registered under the Cooperative societies
Act is a body corporate in view of the provisions of section 36
which read thus:-
"The registration of a society shall render it a body
corporate by the name under which it is registered, with
perpetual succession and a common seal, and with power
to acquit, hold and dispose of property, to enter into
contracts, to institute and defend suits and other legal
proceedings and to do all such things as are necessary for
the purpose for which it is constituted".
Section 141 of the Act which deals with the offences of
companies reads thus:-
"(1) If the person committing an offence under section
138 is a company, every person who, at the time of
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:
[Provided further that where a person is nominated as a
Director of a company by virtue of his holding any office
or employment in the Central Government or State
Government or a financial corporation owned or
controlled by the Central Government or the State
Government, as the case may be, he shall not be liable for
prosecution under this Chapter.]
(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 guilty of that offence and shall be liable to
be proceeded against and punished accordingly.
Explanation: For the purposes of this section
(a) "company" means any body corporate and includes a
firm or other association of individuals; and
(b) "director", in relation to a firm, means a partner in
the firm".
7 Explanation (a) to Section 141 of the Act read with
section 36 of the Cooperative Societies Act, provides that a
cooperative society is a company for the purposes of section 141 of
the Act.
8 In Aneeta Hada Vs. Godfather Travels & Tours
Private Limited, (2012) 5 SCC 661, the Apex Court concludes
thus:
"59. In view of aforesaid analysis, we arrive at the
irresistible conclusion that for maintaining the
prosecution under Section 141 of the Act, arraigning of a
company as an accused is imperative. The other
categories of offnders can only be brought in the drag-net
on the touchstone of vicarious liability as the same has
been stipulated in the provision itself. We say so on the
basis of the ratio laid down in C.V. Parekh which is a
three-Judge Bench decision. Thus, the view expressed in
Sheoratan Agrawal does not correctly lay down the law
and, accordingly, is hereby overruled. The decision in
Anil Hada is overruled with the qualifier as stated in para
51. the decision in Modi Distillery has to be treated to be
restricted to its own facts as has been explained by us
hereinabove".
9 The judgment of the Apex Court in Aneeta Hada Vs.
Godfather Travel &Tours Private Limited is followed by the Apex
Court in Charanjit Pal Jindal Vs. M/s. L.N. Metalics and it
would be apposite to refer to the following observations in the said
judgment:-
"11. From the aforesaid finding, we find that after
analyzing all the provisions and having noticed the
different decisions rendered by this Court, the three
Judges' Bench arrived at the irresistible conclusion that
for maintaining the prosecution u/s 141 of the Act,
arraigning a company as an accused is imperative.
Hence, in this case, we find no reason to refer the matter
to the larger Bench".
"12. In the present case, only the appellant was
impleaded as an accused. In that view of the matter, we
are of the view that complaint with respect to the offence
u/s 138 read with 141 of the Act was not maintainable
following the decision in Aneeta Hada, [2012 ALL SCR
1424] (supra). We set aside the judgment dated
17.4.2010 passed by the Trial Court, order dated
27.5.2011 passed by the Appellate Court and the
impugned judgment dated 9.11.2012 passed by the High
Court of Orissa, Cuttaack in Criminal Revision No. 467
of 2011. The appellant stands acquitted".
10 In the light of the authoritative enunciation of law by
the Apex Court, I have no hesitation in opining that since the
cooperative society was not arrayed as an accused, the complaint
instituted against the office bearers of the society was not
maintainable.
I do not find any compelling reason to interfere with the
judgment of acquittal. The appeal deserves to be rejected, and is
accordingly rejected.
JUDGE
RS Belkhede
