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2005(2) Bankmann 274
BOMBAY HIGH COURT
Naresh H., Patil, J.
Madhavrao Digamber Rasane
& Ors. — Petitioners
versus
State of Maharashtra
& Anr. — Respondents.
Crl. Writ Petition No. 299 of 2003
Decided on 16-10-2004
IMPORTANT POINT
Inherent powers of the court to be exercised in exceptional and deserving cases.
Headnote:Negotiable Instruments Act, 1881 —Section 138—Criminal Procedure Code, 1973—Section 482—Dishonour of cheque—Quashing of complaint—Inherent powers—Court while exercising inherent powers to consider whether complainant made out a case to proceed against accused without adding or subtracting anything from the complaint—Power under Section 482 to be used sparingly with caution and circumspection.
Facts of the Case:
A)The petitioners/accused are the directors of the Society, which was involved in exercise of accepting term deposits and offering loan amounts to borrowers.The complainant alleged that the Society has accepted Rs. 85,105/- as short term deposit. Out of that amount the complainant has returned an amount of Rs. 50,000/- by way of cheque and the said cheque on presentation was dishonoured. The complainant pleaded that A2 and A3 as Chairman and Manager of Society not only signed the cheque but also assured its clearance. As regards the other accused who are the Directors, the complainant stated that they were knowing that the Society did not passes sufficient amount and still permitted issuance of cheque.
B)The plea advanced on behalf of accused-petitioner is that some of the directors had already resigned and being directors they are not supposed to know the day to day business or transactions of the Society. The plea of this nature would involve some evidence to be led. The petitioners are entitled to resort to appropriate remedies before the trial Court even after putting their appearance. At this stage, it will not be appropriate to go into the said defence raised on behalf of some of the accused. The petition is dismissed.
Naresh H. Patil, J.— This criminal writ petition is filed under Article 227 of the Constitution and under Section 482 of the Code of Criminal Procedure.
2. The petitioners contend that the original accused No.1 “Amdar Balasaheb Thorat Nagari Sahakari Patsanstha Maryadit” (hereinafter referred to as “the society”) is a registered Co-operative Credit Society under the provisions of the Maharashtra Cooperative Societies Act. Its functions are to accept savings and term deposits and offer loans to borrowers. The original accused No.2 is the Chairman of the accused No. 1-Society. The accused No.3 is the Manager of the society. Original accused Nos. 4 to 17 are the Directors of the Society.
3. A complaint was filed by respondent No.2 herein, Rasiklal Shantilal Ratadia in the Court of the Judicial Magistrate, First Class, Sangamner which was numbered as Criminal Case No.1360 of 1997 for an offence punishable under Section 138 of the Negotiable Instruments Act and Section 420 of the Indian Penal Code. In short, the complainant in his complaint alleged that the society accepted Rs. 85,105/- as short term deposit with interest. Out of that amount, the society returned an amount of Rs. 50,000/- to the complainant by a cheque bearing No.202961 dated 10.6.1997 to the complainant which was signed by accused No.2 Ramesh Chopda as Chairman of the society and accused No.3 Arjun Gite as Manager of the society. The accused Nos. 2 and 3 assured the complainant that the said cheque would be honoured. The complainant thereafter submitted the cheque for clearance but it was returned on 20.9.1997 due to insufficiency of funds.
4. The complainant thereafter issued notice dated 29.9.1997 to all the accused person Nos. 1 to 7 through his lawyer and demanded the amount for which the cheque was issued. The notice was received by the accused persons on 30-9-1997.
5. It is further alleged in the complaint that the society was not possessing sufficient amount and this fact was known to the accused Nos. 2 to 17 and in spite of the knowledge of the same with an intention to deceive and with ulterior motive the accused issued cheque in favour of the complainant and deceived him and thereby committed serious offence. This complaint was filed on 16-10-1997. Verification of the complainant was recorded by the learned Magistrate and process was issued against the accused persons.
6. The original accused Nos. 4 to 7,9,10 and 12 prayed for recall of the process issued against them under Section 138 of the Negotiable Instruments Act and Section 420 of the Indian Penal Code by filing application dated 20-3-1998. The learned Judicial Magistrate, First Class, Sangamner by an Order dated 15-4-1999 rejected the said application.
7. The said seven accused persons preferred Criminal Revision Application No.334 of 2000 to the Sessions Court. The learned ad hoc Additional Sessions Judge, Sangamner by Judgment and Order dated 17-6-2003 dismissed the said criminal revision application.
8. The learned Counsel for the petitioners submitted that an omnibus statement is made in the complaint, which cannot be basis to issue process against the accused persons. On the allegations made in the complaint no offence is made out under the provisions of Section 138 of the Negotiable Instruments Act and Section 420 of the Indian Penal Code. The Board of Directors is not responsible for the day-to-day business of the society. They are to look after and lay down only policy matters. The complaint lacks better particulars for attracting penal provisions of law as against the petitioners. To support his submissions, the learned Counsel Mr. A.S. Bajaj, has placed reliance on the following Judgments—Municipal Corporation of Delhi v. Ram Kishan Rohtagi1; Katta Sujatha v. Fertilizers & Chemicals Travancore Ltd.2, and P. Rajarathinam v. State of Maharashtra3.
9. Per contra, learned Counsel appearing for the respondent No. 2-complainant, submitted that reading of complaint discloses a case to
