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Karnataka High Court
K.CHANDRASEKHAR - Appellant
Versus
CHARLES INDIA LIMITED, BANGALORE - Respondent
Decided On : 01-04-05
CRIMINAL PETITION : 2906 of 2004
CRIMINAL PROCEDURE CODE, 1973
Section 255 -Discharge of accused -Dishonour of cheque issued by company -Non-bailable warrant issued -No possibility of securing some of the accused -Substituted service should be taken i.e.., by way of paper publication -If absent then also, should be proceeded exparte -Neither the case can be splitted nor the remaining accused seek discharge.
[Huluvadi G. Ramesh, J]: Some times the complainant would not be knowing as to the internal functioning of the accused company such as, at whose instance the cheques are issued and whether a cheque has been issued at the instance of the board of Directors or whether the cheques were issued in the normal course of business and whether the Managing Director. Directors of Officers in-charge of the management are liable for issuance of and dishonour of cheques. Further, it would be a burden on each of the accused to come out and say that they cannot be made liable to or in what capacity they have acted. In view of the same and also in view of the specific provision provided under the proviso to Section 141 of the Negotiable Instruments Act, the petitioner/accused 11 and 12 cannot seek exemption and also for acquittal or discharge by filing an application under Section 255, Cr. PC.
Cases Referred: AIR 1997 SC 2104.
Followed: AIR 1984 SC 1824; AIR 2000 SC 145.
Splitting of case
NEGOTIABLE INSTRUMENT ACT, 1881 - Section 138 & 141 - Splitting of case -Non-bailable warrant issued -No possibility of securing some of the accused -Case splitted -Whether proper -Held, should have taken substituted service by way of paper publication -If even after that, failed to appear or represented, should have proceeded exparte -Remaining accused cannot seek exemption or acquittal.
[Huluvadi G. Ramesh, J]: The order of splitting of the case against accused 1 to 9 is liable to be quashed and the case has to be re-opened against accused 1 to 9 and proceeded simultaneously with a direction to the complainant - respondent to take steps once again as provided under law. Thereafter, the trial Court shall deal with the matter as against all the accused. Since already the matter is at the stage of conclusion and the case is set up for arguments of accused 11 and 12, ultimately if it is found that accused 11 and 12 are not responsible for the conduct of business, they would be acquitted. In order that the complainant should not suffer any loss and in order that interest of justice be secured, the complainant respondent shall take all steps to re-open the case as against accused 1 to 9 as well. Since the trial Court has already split up the matter against accused 1 to 9 who are also said to be responsible as alleged in the complaint, It appropriate even at this juncture, to direct the trial Court to re-open and hear the matter against all the accused except accused 10.
Cases Referred: AIR 1997 SC 2104.
Followed:AIR 1984 SC 1824; AIR 2000 SC 145.
No possibility of securing some accused
DISHONOUR OF CHEQUE
No possibility of securing some accused - Procedure to be followed by court.
[Huluvadi G. Ramesh, J]: The order of splitting of the case against accused 1 to 9 is liable to be quashed and the case has to be re-opened against accused 1 to 9 and proceeded simultaneously with a direction to the complainant - respondent to take steps once again as provided under law. Thereafter, the trial Court shall deal with the matter as against all the accused. Since already the matter is at the stage of conclusion and the case is set up for arguments of accused 11 and 12, ultimately if it is found that accused 11 and 12 are not responsible for the conduct of business, they would be acquitted. In order that the complainant should not suffer any loss and in order that interest of justice be secured, the complainant respondent shall take all steps to re-open the case as against accused 1 to 9 as well. Since the trial Court has already split up the matter against accused 1 to 9 who are also said to be responsible as alleged in the complaint, It appropriate even at this juncture, to direct the trial Court to re-open and hear the matter against all the accused except accused 10.
Cases Referred: AIR 1997 SC 2104;
Followed: AIR 1984 SC 1824; AIR 2000 SC 145.
( 1 ) THIS petition is filed under Section 482 of the Cr. P. C. seeking for calling the records in connection with Criminal Revision Petition No. 394 of 2004 on the file of the Additional District and Sessions judge/fast Track, Court IV, Bangalore and to set aside the order dated 17-8-2004 and also the order passed by the XX Additional Chief metropolitan Magistrate, Bangalore dated 5-8-2004 on the application filed by the petitioners under Section 255 of the Cr. P. C. in CC No. 23005 of 1997 and to allow the said application. Brief facts are:
( 2 ) THE respondent has filed a complaint against these petitioners who are arrayed as accused 11 and 12 along with ten others, for the alleged offence under Section 138 read with Sections 141 and 142 of the negotiable Instruments Act, 1881. In the complaint it is alleged that the 1st accused is a Company registered under the Companies Act, 1956 the 2nd accused is the Managing Director of the said Company and the registered office of the Company is located at Mumbai. The accused-Company is conducting business in dairy and dairy products and accused 3 to 10 are the Directors of the 1st accused-Company. Accused 11 and 12-petitioners herein, are the employees of the 1st accused-Company. It is stated that accused 2 to 10 were in-charge of the day-to-day affairs of the Company at the time of commission of the alleged offence. It is further alleged that all the accused jointly conspired and connived in committing the offence as contemplated under the negotiable Instruments Act. It is stated that on behalf of the 1st accused-Company, the other accused availed the facility of discounting the Bill of Exchange against the cheques paid by their suppliers in the course of business, from the complainant. The complainant-respondent had discounted two bills of exchange raised on the accused-Company-one No. 112, dated 26-9-1996 for Rs. 2,50,000/- by c. S. Printers, Bombay and another No. 117, dated 12-10-1996 for Rs. 51,42,500/- by C. S. Printers, Bombay. The accused, in repayment of the discounted bills on the above account, is said to have issued two cheques dated 23-11-1996 for Rs. 25,74,000/- and Rs. 26,92,800/- drawn on canara Bank, Trinity Circle, Bangalore with a request to the complainant-respondent to present the same for realisation during the month of March 1997 and assured payment. As per the understanding, when the cheques were presented for realisation through their bankers m/s. State Bank of India, Industrial Finance Branch, Bangalore, both the cheques were dishonoured due to 'insufficient funds'. Thereafter, the complainant is said to have issued registered notices dated 15-3-1997 and 17-3-1997. Notices were said to be issued through certificate of posting also calling upon the accused to make payment within fifteen days. Since there is violation on the part of the accused persons to make payment, complaint is said to have been filed alleging that accused 11 and 12 who are the petitioners herein, are the authorised signatories of the 1st. accused-Company; that all other accused were in-charge of the affairs and were aware of the financial transaction of the Company, the operation of the Bank account and availability of funds at the time of issuing cheques and in spite of the same, willfully and with an intention to defraud the complainant, two cheques were issued and thereby the accused have committed offence under Section 138 of the Negotiable instruments Act.
( 3 ) THE complaint was presented before the XX Additional Chief metropolitan Magistrate, Bangalore. It appears that cognizance was taken and thereafter, the matter was posted for sworn statement during 1997. Subsequently, during pendency of the matter before the XX additional Chief Metropolitan Magistrate, an application is said to have been filed by the present petitioners who are accused 11 and 12 in the complaint under Section 255 of the Cr. P. C. seeking for acquittal. The said application has been contested an
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