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2011 Supreme(SC) 119
2012 CrLJ 1204
Supreme Court of India
ALTAMAS KABIR & CYRIAC JOSEPH
Yin Cheng Hsiung
Versus
M/s. Essem Chemical Industries
CRIMINAL APPEAL NO.284 OF 2011 (Arising out of S.L.P.(crl.)No.6245 of 2009)
Decided on : 31-01-2011
An accused under Sections 138 and 141 of the Negotiable Instruments Act can prove at the initial stage their lack of involvement in business management and their absence from the country, using passport entries, to seek discharge or quashing of proceedings.
Headnote:(A) Negotiable Instruments Act, 1881 - Sections 138 and 141 - Code of Criminal Procedure, 1973 - Sections 401 and 482 - Liability of person in partnership - Absence from country - Quashing of proceedings - The appellant is entitled to demonstrate at the initial stage, prior to the plea being taken, that he was not responsible for the day-to-day management of the business and was not present in the country when the offence was allegedly committed.
(B) Quashing of Criminal Proceedings - High Court’s power under Section 482 CrPC - When it is claimed that the accused was residing abroad during the relevant period, the court should examine the entries in the passport to determine the veracity of the claim to determine responsibility for the offence, rather than relegating such considerations solely to the trial stage.
Facts of the case:
Proceedings were initiated against the appellant under Sections 138 and 141 of the Negotiable Instruments Act. The appellant sought discharge and quashing of proceedings on the grounds that he had no concern with the day-to-day running of the partnership business and was residing outside the country during the period the offence was committed. The trial court rejected the prayer for discharge, and the High Court subsequently refused to interfere, holding that these contentions should be considered by the trial court at the appropriate stage of the trial.
Findings of Court:
The court found that the appellant was entitled to show at the initial stage that he was in no way responsible for the day-to-day management of the business and was not in the country when the offence is said to have been committed. It held that the High Court should examine the entries in the appellant's passport to determine these facts.
Issues: Whether the High Court was justified in refusing to examine the appellant's claim of residing abroad and lacking management control at the initial stage of the proceedings.
Ratio Decidendi: At the initial stage of proceedings under the Negotiable Instruments Act, an accused is entitled to present evidence, such as passport entries, to demonstrate their lack of responsibility for business management and their absence from the country at the time of the alleged offence to determine their liability.
Result: Appeal allowed to the extent that the High Court is requested to dispose of the matter afresh.
Legal Category Hierarchy
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crime and sentencing
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offences relating to negotiable instruments
- dishonour of cheque
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offences relating to negotiable instruments
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practice and procedure
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criminal procedure
- discharge
- quashing of proceedings
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evidence
- passport examination
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criminal procedure
Judgment :
Leave granted.
This appeal is directed against the judgment and order dated 1.8.2008 passed by the Calcutta High Court in C.R.R. No.1442 of 2008, disposing of the appellant's revision application under Section 401 read with Section 482 of the Code of Criminal Procedure and rejecting his prayer for discharge and for quashing the proceedings in connection with Case No.C-1066 of 2005 pending before the 8th Metropolitan Magistrate, Kolkata, under Sections 138/141 of the Netogiable Instruments Act,1881. The appellant's prayer for discharge having been rejected by learned Metropolitan Magistrate, since summons had been issued, the High Court upheld the said order and did not interfere with the same.
As far as the prayer made under Section 482 of the Code of Criminal Procedure is concerned, the High Court accepted the submissions made on behalf of learned
Advocate appearing for the respondent that the contentions raised by the appellant to the effect that he had no concern with the day to day running of the partnership business and that he was staying abroad during the relevant period, would have to be considered by the trial court at the appropriate stage of the trial.
Having heard learned counsel for the parties, we are unable to sustain the second part of the order passed by the High Court since, in our view, the appellant herein was entitled to show at the initial stage when plea had not yet been taken, that he was in no way responsible for the day to day management of the business and that he was not in India when the offence is said to have been committed.
Having regard to the above, and having particular regard to the observations made by this Court in State of Haryana & Ors. v. Bhajan Lal & Ors. [1992 Supp. (1) SCC 335] : (AIR 1992 SC 604 : 1992 AIR SCW 237) , we make it clear that the High Court should examine the entries in the appellant's passport for determining the aforesaid question since it is the appellant's case that he left India in January, 2003, and has not returned to India thereafter. Accordingly, we allow this appeal to the aforesaid extent. We request the High Court to dispose of the matter afresh, if possible within a period of three months from the date of communication of this order. In the event the appellant is not able to produce the entries from the passport within the said period, the High Court will be at liberty to dispose of the matter in such manner as it deems fit. The order dated 11.9.2009 staying the proceedings before learned Metropolitan Magistrate against the appellant, is extended until further orders by the High Court.
