Bombay High Court
Rainbow Paper Ltd. Thr. Its ... vs State Of Maharashtra Thr. Its ... on 13 August, 2021
Bench: Manish Pitale
1/8 215-APL325.17-Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APL) NO. 325 OF 2017
APPLICANTS :- 1. Rainbow Papers Limited, having its
registered office situated at 801, Avdesh
House 8th Floor, Opp. Guru Govind
Gurudwara, Gandhi Nagar, Sarkhej
Highway, Thaltej, Ahmedabad-3800054
Acting through its Managing Director.
2. Ajay Kumar Radheshyam Goenka,
Managing Director, 801, Avdesh House,
8th Floor, Opp. Guru Govind Gurudwara,
Gandhi Nagar, Sarkhej Highway, Thaltej,
Ahmedabad 3800054.
3. Mrs. Niyati Agrawal, Senior Vice
President, 801, Avdesh House, 8th Floor,
Opp. Guru Govind Gurudwara, Gandhi
Nagar, Sarkhej Highway, Thaltej,
Ahmedabad 3800054.
4. Mrs. Sangeeta Ajay Goenka, Senior Vice
President, 801, Avdesh House 8 th Floor,
Opp. Guru Govind Gurudwara, Gandhi
Nagar, Sarkhej Highway, Thaltej,
Ahmedabad 3800054.
5. Rahul Jamnaprasad Maheshwari,
Director, 801, Avdesh House 8th Floor,
Opp. Guru Govind Gurudwara, Gandhi
Nagar, Sarkhej Highway, Thaltej,
Ahmedabad 3800054.
6. Abhilash Khimabhai Delwadia Director,
801, Avdesh House 8th Floor, Opp. Guru
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Govind Gurudwara, Gandhi Nagar,
Sarkhej Highway, Thaltej, Ahmedabad
3800054.
7. Indrasinh Bacharsingh Zala, Director,
801, Avdesh House, 8th Floor, Opp. Guru
Govind Gurudwara, Gandhi Nagar,
Sarkhej Highway, Thaltej, Ahmedabad
3800054.
8. Kantibhai Hirabhai Patel, Director, 801,
Avdesh House 8th Floor, Opp. Guru
Govind Gurudwara, Gandhi Nagar,
Sarkhej Highway, Thaltej, Ahmedabad
3800054.
9. Shashikant Natverlal Thakar, Company
Secretary, 801, Avdesh House, 8th Floor,
Opp. Guru Govind Gurudwara, Gandhi
Nagar, Sarkhej Highway, Thaltej,
Ahmedabad-3800054.
10. Aanal Nandlik Trivedi, Director, 801,
Avdesh House, 8th Floor, Opp. Guru
Govind Gurudwara, Gandhi Nagar,
Sarkhej Highway, Thaltej, Ahmedabad
3800054.
...VERSUS...
NON-APPLICANTS :- 1. State of Maharashtra, through its Police
Station Officer, Police Station Dhantoli,
Nagpur, Tq.and Distt.Nagpur.
2. M/s. Transword Impex, a partnership
firm having its registered office situated
at 205, Shreemohini Complex, Kingsway,
Nagpur, and correspondence address at
Plot No.21, IT Park, Wing-A Ground
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Floor, Gayatri Nagar, Nagpur-440022,
acting through its partner Shri. Deep
Surendrakumar Saraf, aged about 35
years, Occ. Business, R/o Ganga Sagar,
Apartment, Canal Road, Ramdaspeth,
Nagpur-440010.
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Mr. S. G. Joshi, counsel for the applicants
Mr. A. R. Chutake, APP for non-applicant No.1
None for non-applicant No.2.
-------------------------------------------------------------------------------------------
CORAM : MANISH PITALE, J.
DATE : 13.08.2021.
ORAL JUDGMENT
By this application, the applicants, who are a Company
and its Directors, have approached this Court challenging order
dated 15/02/2017 passed by the Court of 21st Judicial Magistrate
First Class (Special Court), Nagpur (Magistrate), whereby process
has been issued against them on a complaint filed by non-
applicant No.2 under section 138 of the Negotiable Instruments
Act, 1881 (hereinafter referred to as "Act of 1881").
2. Non-applicant No.2 filed complaint dated 23/11/2016,
before the Court of Magistrate, claiming that the applicants before
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this Court are liable to be punished for the offence punishable
under section 138 of the Act of 1881. The said complaint has
been registered as Summary Criminal Complaint No.17257 of
2016. By the impugned order, the Magistrate has issued process
against the applicants.
3. In the present application, this Court issued notices on
15/06/2017, and granted interim stay to the proceedings before
the Magistrate. An attempt at mediation resulted in failure. On
25/01/2018, this Court granted Rule in the present application
and the interim stay was continued. The record shows that non-
applicant No.2 (original complainant) is represented by an
Advocate. But, when the application is called out for hearing
today, none has appeared on behalf of non-applicant No.2. The
cause list, for today, specifically carries a note that final hearing
matters at Sr. Nos.211, 215, 216, 225 to 228 shall not be
adjourned on any ground. The present application is listed at
Sr.No. 215 and it is taken up for final hearing.
4. Mr. Khemuka, the learned counsel has appeared on behalf
of the applicant and he made twofold submissions. Firstly, it was
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submitted that non-applicant No.2 has made bald statements as
regards the role of the applicants. It is stated with regard to all
the applicants in an omnibus manner that they were responsible
for day-to-day functioning of the applicant No.1-Company. It is
submitted that this is not enough in terms of the law laid down by
the Hon'ble Supreme Court in various judgments, including the
judgment in the case of K.K. Ahuja v. V.K.Vora, reported in (2009)
10 SCC 48. Secondly, it is submitted that in the present case, the
applicants are all residents of places beyond the jurisdiction of the
aforesaid Magistrate and that therefore, an enquiry under section
202 of the Code of Criminal Procedure (Cr.P.C.) is mandatory.
Attention of this Court is invited to judgment of a Constitution
Bench of the Hon'ble Supreme Court, dated 16/01/2021 in Suo
Motu Writ Petition (Cr.) No.2 of 2020, In Re: Expeditious Trial of
Cases Under Section 138 of N.I.Act 1881. The learned counsel
submitted that the conclusions rendered in the said judgment
specify that an enquiry under section 202 of the Cr.P.C., in the
context of complaint under section 138 of the Act of 1881, is
mandatory, although the procedure has been modified to the
extent that the evidence of the witnesses could be taken up on
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affidavits. On this basis, it was submitted that the impugned order
deserves to be set aside, as process has been issued merely by
recording that the complaint, verification statements and the
documents filed along with the complaint were perused.
5. Mr. A. R. Chutake, learned APP has appeared on behalf of
the non-applicant-State.
6. As noted above, although represented by counsel, non-
applicant No.2 is not represented today by any counsel at the
stage of final hearing.
7. In the present case, perusal of the impugned order dated
15/02/2017, does show that the Magistrate has proceeded to
issue process against the applicants by simply recording that the
complaint, verification statements and the documents filed
therewith have been perused. It is an admitted position that the
applicants are all residents of places beyond the jurisdiction of the
aforesaid Magistrate. In the aforesaid judgment, in the case of In
Re: Expeditious Trial of Cases Under Section 138 of N.I. Act 1881 ,
Constitution Bench of the Hon'ble Supreme Court has held as
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follows:
"24. The upshot of the above discussion leads us to
the following conclusions:
1) The High Courts are requested to issue practice
directions to the Magistrate to record reasons
before converting trial of complaints under
Section 138 of the Act from summary trial to
summons trial.
2) Inquiry shall be conducted on receipt of
complaints under section 138 of the Act to arrive
at sufficient grounds to proceed against the
accused, when such accused resides beyond the
territorial jurisdiction of the court.
3) For the conduct of inquiry under Section 202 of
the Code, evidence of witnesses on behalf of the
complainant shall be permitted to be taken on
affidavit. In suitable cases, the Magistrate can
restrict the inquiry to examination of documents
without insisting for examination of witnesses."
8. In the said suo motu proceeding before the Hon'ble
Supreme Court, the question as to whether the enquiry under
section 202 of the Cr.P.C. was mandatory in the context of
complaints under section 138 of the Act of 1881 was specifically
raised and answered. As noted above, the Hon'ble Supreme Court
has specifically held that such an enquiry has to be conducted,
even in cases concerning complaints under section 138 of the Act
of 1881. The impugned order does show that no such enquiry was
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conducted and therefore it is rendered unsustainable. As regards
the other contention raised on behalf of the applicants, this Court
is of the opinion that since in the present case, only the order of
the issuance of process has been challenged, it would be open to
the applicants to raise such contention in an appropriate manner if
required, before the Magistrate.
9. In view of the above, the application is partly allowed. The
impugned order passed by the Magistrate is quashed and set
aside, since the mandatory requirement under section 202 of the
Cr.P.C. was not satisfied.
10. The Magistrate may now proceed to deal with the
complaint filed by non-applicant No.2, in accordance with law.
11. Rule is made absolute in the above terms.
JUDGE
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