Gujarat High Court
Kebisons Industries Thro Patel ... vs Patel Sanjaykumar Bhikhabhai on 20 September, 2023
Bench: Nisha M. Thakore
NEUTRAL CITATION
R/CR.MA/15370/2023 ORDER DATED: 20/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 15370 of 2023
In F/CRIMINAL APPEAL NO. 21640 of 2023
With
F/CRIMINAL APPEAL NO. 21640 of 2023
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KEBISONS INDUSTRIES THRO PATEL SURESHBHAI RAMABHAI &
2023 other(s)
Versus
PATEL SANJAYKUMAR BHIKHABHAI
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Appearance:
MR. AUM M KOTWAL(7320) for the Applicant(s) No. 1
for the Respondent(s) No. 1,2,3,4,5,6,7
Ms. Monali Bhatt, Addl. PUBLIC PROSECUTOR for the Respondent(s)
No. 8
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 20/09/2023
ORAL ORDER
1. Heard Mr.Aum Kotwal, learned advocate for the applicant-
original complainant.
2. This application is filed seeking leave to appeal under
Section 378(4) of the Code of Criminal Procedure against the
impugned judgment and order dated 25.04.2023 passed by the
learned Additional Judicial Magistrate First Class, Mehsana in
Criminal Case No.11067 of 2016. By the said judgment and
order, the learned Magistrate has recorded the acquittal of the
present respondent nos. 1 to 7- original accused for the alleged
offence punishable under Section 138 of the Negotiable
instruments Act.
3. The case of the original complainant as contended in the
original complaint is that the applicant is the manufacturer and
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suppliers of Mirror Glass Beads to the market and respondent -
original accused has purchased Mirror Glass Beads from the
applicant. It is contended in the complaint that in the year 2013
the respondent - original accused had come to the factory of the
applicant for business transaction and decided to place orders
for goods, for which, payment was made by the respondent. It is
further contended in the complaint that the respondents -
original accused purchased the goods amounting to
Rs.26,53,613/- from the applicant and payment towards the
same was also made by the respondents. Thereafter, the
respondents- original accused had purchased the goods
amounting to Rs.28,84,392/- from the applicant within one
month and twelve days after the commencement of new
accounting year 1.4.2014. That out of the aforesaid sale
transaction, the applicant received an amount of Rs.6,91,237/-
from the respondents. However, on expiry of period when the
respondent failed to repay the outstanding amount, the
complainant had raised demand of the aforesaid amount. At that
stage, the respondents had handed over four cheques of an
amount of Rs. 11,400/-, Rs.1,46,600/-, Rs.1,46,598/- and
Rs.88,452/- to the original complainant. It is contended that at
the time of delivery of cheques the accused had assured the
complainant that the cheques shall be honored and amount
shall be repaid. The complainant had deposited the two cheques
for an amount of Rs.1,46,600/- and Rs.11,400/- before the
concerned Bank on 5.6.2014 and 7.6.2014. However, the same
were returned back with an endorsement "funds insufficient"
and "account close" by the concerned Bank. The complainant
was therefore, constrained to initiate proceedings under Section
138 of the Negotiable Instruments Act by issuing legal notice
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upon the respondent no.1 on 1.7.2014, which was denied and
returned on 7.7.2014. Thereafter, another legal notice was sent
upon the respondent nos. 2, 3, 5 and 6 on 5.7.2014 and
09.07.2014. The said notice was duly served upon the
respondents-accused. Thereafter, another legal notice was sent
upon the respondent no.4 and same was returned with an
endorsement owner not available. That thereafter another legal
notice was sent upon the respondent no.7 on 10.07.2014, which
was denied and returned. The complainant had, therefore,
approached the Court of learned Judicial Magistrate First Class,
Danta by lodging complaint under Section 138 of the Negotiable
Instruments Act. The said complaint was registered as Criminal
Case No11067 of 2016.
4. After recording verification of the original complainant, the
learned Magistrate has issued summons upon the respondent
accused, which was duly served. The respondent had appeared
before the learned Magistrate and their pleas were recorded vide
wherein he had pleaded not guilty for the offence punishable
under Section 138 of the Negotiable Instruments Act. The trial
was conducted by the learned Magistrate. The oral as well as
documentary evidence have been led by the original
complainant. The complainant has been cross examined by the
respondent -accused. The further statement of the accused was
recorded under Section 313 of the Code of Criminal Procedure
wherein the specific defence has been raised by the accused that
no outstanding amount is required to be realized as the amount
has been repaid and false complaint has been lodged. The
learned Magistrate upon appreciation of the evidence which has
come on record and the submissions made by the learned
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advocates for the respective parties, has proceeded to pass the
impugned order of acquittal. Hence, this appeal along with
special leave to appeal under Section 378(4) of the Code of
Criminal Procedure, at the instance of the original complainant.
5. It is submitted by learned advocate for the applicant that
disputed transaction had taken place with the company which is
duly registered as per the provisions of the Companies Act.
However, for bonafide reasons and inadvertently company was
not joined as party respondent - original accused in the original
complaint which has resulted into the dismissal of complaint in
view of the mandatory provision of Section 141 of the Negotiable
Instruments Act. Learned advocate has invited attention of this
Court to the reasons assigned by the learned Magistrate while
recording impugned order of acquittal. He has further placed
reliance upon the grounds raised in the present appeal. The
attention of this Court was also invited to the nature of
transaction. He has urged this Court to grant leave to appeal
and had urged to re-examine the issue at the final hearing stage
of the appeal.
6. Having noticed the case of the complainant and having
perused the impugned order, the only question which falls for
consideration of this Court is whether the learned Magistrate
committed any error in dismissing the complaint under Section
138 of the Negotiable Instruments Act in the facts of the present
case. Learned Magistrate upon close examination of the
averments made in the complaint as well as upon evaluation of
the evidence of the original complainant, who is the authorized
officer of the original complainant, has arrived at a finding that
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the transaction has taken place with company viz. Status
Seramik India Private Limited. The respondents- original
accused are the Managing Director of the aforesaid company.
The contention was raised by the original complainant that the
respondents - accused company is proprietorship concerned
and hence provision of Section 141 of the Negotiable
Instruments Act would not be attracted in the facts of the case.
The learned Magistrate upon close examination of the evidence
which has come on record, more particularly status of the
drawer as reflected from the disputed cheque produced on
record vide Exhs. 79 and 82, noticed that the cheque was drawn
by Status Seramik India Private Limited. Though, the
designation of the authorized signatory or the person who has
drawn this cheque on behalf of company is not reflected in the
disputed cheque, however, the fact remains that cheque has
been drawn on behalf of the company. Having noticed the
aforesaid fact, no error can be found with the approach of the
learned Magistrate in applying provision of Section 141 of the
Negotiable Instruments Act. Section 141 of the Negotiable
Instruments Act reads as under:
"Section 141: Offences by companies. --
(1) If the person committing an offence under section
138 is a company, every person who, at the time the
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:
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[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."
6.1. The issue of maintaining the prosecution under the
Negotiable Instruments Act without arraigning a company as a
party accused has been decided by the Hon'ble Supreme Court
in the case of Aneeta Hada vs. M/s. Godfather Travels & Tours
reported in (2012) 5 SCC 661. The relevant observations of the
Hon'ble Supreme Court in the case of Aneeta Hada (Supra) are
narrated as under:
"59. In view of our 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 offenders can only be brought in the
dragnet 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
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(supra) which is a three-Judge Bench decision. Thus,
the view expressed in Sheoratan Agarwal (supra) does
not correctly lay down the law and, accordingly, is
hereby overruled. The decision in Anil Hada (supra) is
overruled with the qualifier as stated in paragraph
51.The decision in Modi Distilleries (supra) has to be
treated to be restricted to its own facts as has been
explained by us hereinabove."
7. In light of the aforesaid settled legal position, this Court is
of the view that no arguable case is made out for reconsideration
by admitting the appeal. Hence, present application seeking
leave to appeal is hereby refused. Thus, present application
stands rejected.
Order in Criminal Appeal No(F).21640 of 2023
In view of rejection of the leave to appeal, present Criminal
Appeal stands rejected.
(NISHA M. THAKORE,J)
KAUSHIK J. RATHOD
