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BOMBAY HIGH COURT
A.S. Chandurkar, J.
Parshwa Engineering Private Limited and Ors. —Applicants
versus
State of Maharashtra and Anr. —Respondents
Criminal Application No.3184 of 2007 and Criminal Application No.3262 of 2007
Decided on 19.12.2017
Counsel for the Parties:
For the Applicant:Shri M. P. Khajanchi, Advocate
For the Respondent No.2:Shri M.A. Vishwarupe, Advocate
IMPORTANT POINT
Complaint itself cannot be quashed on ground that list of witnesses was not furnished.
Headnote:Criminal Procedure Code, 1973—Section 482—Negotiable Instruments Act, 1881—Section 138—Dishonour of cheque—In complaint there have to be specific averments describing role played by accused persons and manner in which they are responsible for conduct of business—However, same is not the case with regard to signatory of a cheque—Absence of list of witnesses being furnished as required by Section 204(2) of Code as well as absence of authorization on part of Joint Manager to file complaint can at the most affect order issuing process—Complaint itself cannot be quashed on that count—Complaints as such are not liable to be quashed in entirety—Complaint case set aside and Judicial Magistrate directed to reconsider the matter afresh and in accordance with law. (Paras 8 to 12)
Result: Complaint quashed.
JUDGMENT (ORAL)
A.S. Chandurkar, J.—Both these criminal applications filed under Section 482 of the Code of Criminal Procedure, 1973 seek quashing of the complaints filed under Section 138 of the Negotiable Instruments Act, 1881 (for short, the said Act). As common challenges are raised, the applications are decided by this common judgment.
2. The non-applicant no.2 herein is a Corporation that has filed two complaints under Section 138 of the said Act. In Criminal Application No.3184/2007, the complaint filed is Criminal Case No.6029/2005. In said complaint, the present applicants have been arrayed as the accused persons. According to the complainant, the accused Nos.2 & 3 on behalf of the accused No.1 which is a Firm had approached it for financial assistance. After verifying the relevant documents, the complainant sanctioned raw material assistance to the Firm. An agreement was entered into between the parties. Pursuant to the assistance scheme, the accused Nos.1 and 2 issued cheques bearing Nos.295294, 295295, 295296 and 295297 dated 17th May, 2001 These cheques issued by the accused nos.1 and 2 were dishonoured on 18.5.2001. After issuing notice under Section 138 of the said Act, the complaint came to be filed.
3. In Criminal Application No.3262/2007, the complaint bears Summary Criminal Case No.6757/2005. The cheque herein is alleged to be issued by the accused no.3 on behalf of the accused no.1. The cheque bears No.295276 dated 1452001. This cheque issued by the accused no.3 was dishonoured on 16.5.2001. After issuing the notice under Section 138 of the said Act, the complaint came to be filed.
4. The learned Magistrate recorded the statement of the complainant. In Criminal Complaint Case No.6029/2005 it was stated by the General Manager of the Corporation that the cheque in question was issued by the accused No.2. In Criminal Complaint Case No.6757/2005 it was stated on oath that the cheque dated 14.5.2001 was issued by the accused No.3. On that basis process came to be issued by the learned Magistrate. Being aggrieved, the applicants who are the accused in the complaints have filed the present proceedings.
5. Shri M. P. Khajanchi, learned Counsel for the applicants stated that though the cheques in question were issued in the year 1998, the complaint had been filed on 3.7.2001. The cheques were presented beyond the period of six months as stipulated by Section 138 proviso (a) of the said Act. The complaints were therefore barred by limitation. It was then submitted that necessary averments with regard to the role played by the accused persons had not been pleaded in the complaint. It was not stated as to who was incharge of and responsible for the conduct of business of the firm. Vague averments stating that the accused Nos. 2 and 3 were the Directors of the Company had been made. These averments did not satisfy the statutory as well as legal requirements. It was further urged that the accused no.3 had resigned as a Director on 3.1.2000.
The offence having been committed subsequently he could not have been arrayed as an accused. He referred to Form No.32 maintained under the Companies Act, 1956 in that regard. It was further submitted that the complaint was filed by the Corporation through its Joint Manager. However, no authorization in his favour issued by the Company had been placed on record. Similarly, the Articles of Association were also not placed on record. The order issuing process was therefore bad in law as the same had been issued on the basis of verification of the person who was not authorized to represent the Company. No list of witnesses proposed to be examined by the complainant was filed as required by Section 204 of the Code. The endorsement made on the verification that the same had been read and it was correct indicated that the verification was not recorded before the learned Magistrate and hence, it was no verification in the eyes of law. On these counts, it was submitted that the complaints fil
