Deep S/O Ramesh Saraf vs Dr Murli Hanumandas Agrawal And ...
2017 Latest Caselaw 7320 Bom

                                                    1                       apl383.12.odt

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH AT NAGPUR
             CRIMINAL APPLICATION (APL) NO.383/2012

      Deep s/o Ramesh Saraf, 
      aged 32 years, Occ. Business, 
      r/o c/o Vidarbha Refineries Ltd.
      Akola Road, Khamgaon, Tq. Khamgaon,
      Dist. Buldhana.                     .....APPLICANT
                        ...V E R S U S...

 1. Dr. Murli Hanumandas Agrawal, 
    aged 64 years, Occ. Business.

 2. Ashwin Murli Agrawal, 
    aged about 31 years, Occ. Business, 
    Both r/o Vishnu Mahel, D. Road,
    Churchgate, Mumbai.

 3. Pradip V. Chitre, aged major,
    Occ. Service, r/o c/o Assets Recovery
    Management Service Branch, 1st Floor,
    70/80 Mahatma Gandhi Marg, Fort,
    Mumbai- 400 023.

 4. State of Maharashtra thr. A.P.P.
      Khamgaon, Tq. Khamgaon, Dist.
      Buldhana.                                               ...NON APPLICANTS
 -------------------------------------------------------------------------------------------
 Mr. S. V. Sirpurkar, Advocate for applicant.
 Mr. I. Damle, A.P.P. for non applicant no.4.
 -------------------------------------------------------------------------------------------
                               CORAM:- V. M. DESHPANDE, J.

DATED :- 20.09.2017 ORAL JUDGMENT

1. Heard Mr. S.V. Sirpurkar, Advocate for applicant and

Mr.I. Damle, A.P.P. for non applicant no.4. Counsel for the non

applicant nos.1 to 3 chose not to remain present when the matter

was called out for final hearing.

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2. Learned counsel for the applicant seriously assailed the

judgment and order passed by learned Additional Sessions Judge,

Khamgaon dated 11.03.2010 in Criminal Revision No.121/2008 and

Criminal Revision No.38/2009 whereby the learned revisional Court

allowed those two criminal revisions and set aside the order passed

by the learned Judicial Magistrate First Class, Akola in Misc. Criminal

Case No.136/2008 whereby the process for the offence under section

500 of the IPC was issued against the non applicant nos. 1 to 3.

3. Few facts giving rise to the present application are as

under:

(i) The applicant and the non applicant nos. 1 and 2, at

the relevant time were the Directors of Vidarbha Refineries

Limited (hereinafter referred to as "Directors" for the sake of

brevity). Non applicant no.3-Pradip Chitre, at the relevant time,

was Manager of Bank of India and was working with Assets

Recovery Management Service Branch, Mumbai.

(ii) The applicant filed complaint against the non applicant

nos. 1 to 3 with an assertion that in the meeting dated

05.01.2002, the Directors of the company resolved that no

transaction with any bank would take place without signature of

all Directors. As per the complaint, the said resolution was

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communicated to the bankers. It is further the case of the

applicant/complainant that non applicant no.1-Dr. Murli Agrawal,

in spite of the knowledge of the resolution passed in the meeting

dated 05.01.2002, issued two cheques of the Bank of India dated

01.12.2005 and 10.12.2005 for Rs.5,00,000/- each on behalf of

the Vidarbha Refineries Ltd. According to the complaint, the said

cheque was dishonoured and therefore the Bank of India, filed a

complaint against the applicant and non applicant nos. 1 and 2 for

an offence punishable under Section 138 of the Negotiable

Instruments Act at Mumbai. The learned Court trying the said

criminal complaint filed by the Bank of India, issued the process

against the applicant and the non applicant nos.1 and 2 for the

offence under Section 138 of the Negotiable Instruments Act. The

said summons was served upon the applicant at Khamgaon and

according to the applicant-complainant that has disreputed him

and that gave an occasion to file the complaint in question at

Khamgaon.

(iii) In the said criminal complaint, the complainant not

only joined the Directors but also non applicant no.3 who was a

bank official of the Bank of India. In the complaint itself, it is

stated by the applicant/complainant that the complaint filed by

the Bank of India was withdrawn and at the time of filing of the

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complaint in question, criminal complaint filed by the Bank of

India was not in existence. Along with the complaint, the

applicant filed following documents as per the list of the

documents appended to the complaint.

"List of Documents:

1. Reply of Ramesh M. Agrawal & Prem M. Saraf, DRT, Mumbai.

2. Notice to Deep R. Saraf, Mumbai Court.

3. Mumbai Court settlement paper.

4. Dena Bank Mumbai, Shares sales case paper in Khamgaon Court

5. Any other document on which the complainant relies, reserves his right to file the same at the relevant stage."

4. The learned Magistrate on 10.11.2008 passed the

following order:

"Perused complaint along with verification and affidavit, likewise, list of documents. Complainant prima-facie established his case. Case is within limitation. Issue process under Section 500 of I.P.C. against accused No.1 to 3 on P.F."

5. Non applicant nos.1 and 2 questioned the wisdom of

the learned Magistrate of issuance of process by filing Criminal

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Revision No.121/2008. Similarly, non applicant no.3, the bank

official also filed separate Criminal Revision viz. Criminal Revision

No.38/2009. The learned Sessions Judge, Khamgaon decided

those two criminal revisions by common judgment dated

11.03.2010 thereby both the revisions were allowed and the

process was set aside giving rise to the present proceedings.

6. According to the learned counsel for the applicant,

though it was well within the knowledge of the non applicant nos.

1 and 2 about the resolution, non applicant no.1 deliberately

issued two cheques. It is also the contention of the learned

counsel for the applicant that the resolution was brought to the

notice of the non applicant no.3 and the bank was also aware

about the resolution dated 05.01.2002 and therefore ought not to

have accepted the cheque issued by the non applicant no.1, which

was ultimately dishonoured. According to the learned counsel for

the applicant therefore the complaint filed on behalf of the Bank of

India was filed with an intention to disrepute the present

applicant. He therefore submitted that summons issued by the

learned Magistrate trying the case of Bank of India at Mumbai has

resulted into serious disreputation to the non applicant not only at

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Khamgaon but also at Raipur where the sister concerns of the

applicant are established.

7. After hearing the learned counsel for the applicant, in

my view, the learned revisional Court was right in reaching to the

conclusion that the process issued by the learned Magistrate is

required to be set aside since it is the outcome of the non

application of mind.

8. It reminds me the law laid down by the Hon'ble Apex

Court in Pepsi Foods Ltd. and anr. Vs. Special Judicial Magistrate

and Others; reported in (1998) 5 SCC 749 and particularly

paragraph 28 of the said authoritative pronouncement. Paragraph

28 of the judgment reads thus:

"Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. it is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support

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thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."

9. Keeping in mind the law laid down by the Hon'ble Apex

Court, if the assertion made in the complaint are scrutinized then

following allegations against the non applicants can be listed:

(i) That there was a unanimous resolution of the Directors

dated 05.01.2002 that all the cheques should be signed by all

Directors.

(ii) The said resolution was brought to the notice of the

banks and accused no.3 (non applicant no.3) has given

acknowledgment thereof.

(iii) In spite of the resolution, non applicant no.1/original

accused no.1, issued the cheque under his signature.

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(iv) In spite of the resolution, bank accepted the cheque

issued under the signature of the non applicant no.1 alone for

clearance.

(v) The cheques were dishonoured for insufficient funds

resulting into the complaint filed by the Bank Of India at

Mumbai and the issuance of the process in the said complaint

against the applicant and non applicant nos. 1 and 2.

10. Keeping in mind the law laid down by the Hon'ble Apex

Court in Pepsi Foods, cited supra it was expected from the learned

Magistrate at the time of issuance of process to at least verify

about the facts mentioned in the complaint. List of the documents

as enumerated in the earlier part of this judgment shows that the

resolution dated 05.01.2002 was not placed on record, the

acknowledgment under the signature of the non applicant no.3 is

also not produced on record showing that he was aware about the

said resolution. In my view, the perusal of the order passed by the

Magistrate shows that it is passed in the most mechanical manner.

What was expected at the time of issuance of process is the

application of mind by the learned Magistrate to the set of

assertions made in the complaint which can be borne out through

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the documents. In the absence of material documents on record,

in my view, the learned Magistrate has committed mistake by

issuing the process.

11. Further, none of the ingredients of Section 499 of the

Indian Penal Code are fulfilled by the complainant. In that view of

the matter, the learned revisional Court has rightly found that the

order passed by the learned Magistrate was erroneous in law.

Resultantly, I do not find any merit in the application.

Consequently, the application is dismissed. Rule is discharged.

JUDGE

kahale