2008(1) Bankmann 275 (Bom.)
BOMBAY HIGH COURT
B.H. Marlapalle, J.
DSL Enterprises Pvt. Ltd.
and Ors. —Applicants
versus
Bank of India and Ors. —Respondents
Criminal Application No. 4529 of 2006
Decided on 10.7.2007

IMPORTANT POINT
Complaint filed by constituted attorney of complainant company under Section 138 of NI Act where official liquidator had already been appointed for complainant Company was maintainable.

Headnote:(i) Criminal Procedure Code, 1973—Section 397—Negotiable Instruments Act, 1881—Section 138—Revision against order of summoning for offence—Cheques were issued towards payment of rental charges—Complainant was alleged to have terminated lease agreement prior to presentation of cheque and thus there was no enforceable liability—Ground had not been taken and pressed in the revision earlier filed before Sessions Court—Legal issues available to challenge the order of process could not be allowed to be taken on piecemeal basis by approaching revisional Court from time to time.

       Held: The first ground raised by the applicants is regarding the effect of the Advocate’s notice dated 25.8.1997 terminating the agreement dated 30.12.1994 on behalf of M/s Enarai Finance Ltd. As rightly contended by Mr. Anturkar, the learned Counsel for the Bank, the very same issue was available to be taken by the applicants in the very first round of revision applications filed before the Sessions Court and it was not a ground which did not exist when the applicants approached the Sessions Court on 8.1.2001. The legal issues available to challenge the order of process cannot be allowed to be taken on piecemeal basis by approaching the revision Court from time to time. It could be safely presumed that when the revision application was filed agitating some legal and factual issues, the other such issues were dropped or the challenge to the same was given up voluntarily and/or for reasons known to the applicants. If such piecemeal challenge are allowed to be taken against the order of process by filing revision applications from time to time, it would be unending and the trial of the complaint pending before the learned Magistrate would be inordinately delayed and the accused may resort to such steps to perpetuate their actions by defrauding the payee by delaying the trial of the case. Even otherwise in the said legal notice it was clearly spelt out that the applicants owed an amount of Rs. 1,37,89,842 to the respondent No.1—Bank together with interest thereon at the agreed rates and the applicants were called upon to pay the same within 14 days from the receipt of the notice. In my considered opinion, therefore, this ground based on the legal notice dated 25.8.1997 terminating the agreement cannot be allowed to be agitated in the second revision application. (Para 9)

       (ii) Negotiable Instruments Act, 1881—Section 138 —Dishonour of cheque issued in favour of complainant company towards discharge of rental charges—Complaint filed by Bank as power of attorney holder of complainant company—Official liquidator had been appointed for complainant Company before filing of complaint—Whether complaint filed by attorney of Company was maintainable? Yes.

       Held: There is no doubt that the Criminal Case No. 461 of 2000 has been filed after the appointment of the Official Liquidator on 26.4.1999 by the respondent No. 1— Bank as the Constituted Attorney of M/s. Enarai Finance Ltd. As per Mr. Joglekar, the dishonoured four cheques which were in the custody of the respondent No.1 as the Constituted Attorney were the property of M/s. Enarai Finance Ltd. and it was only the Official Liquidator who could have initiated steps as contemplated under Section 138 of the N.I. Act, and the Bank could not have taken such steps. The date of the first cheque is 3.4.1999 whereas the date of the remaining three cheques is after 26.4.1999. The applicants do not dispute that these four cheques were already in possession of the respondent No.1—Bank as the Constituted Attorney of M/s. Enarai Finance Ltd. The Official Liquidator has a statutory duty to be performed within the meaning of Sections 456 and 457 of the Companies Act, 1956. On his taking over the properties, liabilities and actionable claims of M/s. Enarai Finance Ltd., he is required to take due steps to discharge the legal functions including the steps to be taken for recovery of financial dues arising out of the contractual obligations. He was, therefore, not estopped from applying to the learned Judicial Magistrate, First Class for being substituted as the complainant in place of the respondent No.1 and such an option is available to him even now or any time during the trial of the criminal complaint. The respondent No.1 being a nationalised bank and the constituted attorney of M/s. Enarai Finance Ltd., cannot be blamed or cannot be attributed any motives for filing the criminal complaint against the applicants for the offence punishable under Section 138 of the N.I. Act and it must be credited for acting in time as the custodian of the public funds. The complaint flied by the respondent No.1 in its capacity as the constituted attorney, by no stretch of imagination, could be quashed and set aside by invoking the inherent powers under Section 482 of Cr. P.C. only on the ground that it was not filed by the Official Liquidator who was appointed prior to the filing of the complaint. It would be unsafe to invoke the inherent powers under Section 482 of Cr. P.C. to concede to such a prayer and quash and set aside the criminal complaints punishable for an offence under Section 138 of the N.I. Act. (Para 10)

       Result: Petition dismissed.