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2009(2) Bankmann 25 (Bom.)
BOMBAY HIGH COURT
A.S. Oka, J.
Amarnath Baijnath Gupta and
Another –Petitioners
versus
M/s. Mohini Organics Pvt. Ltd. and Another –Respondents
Criminal W.P. Nos.1444 with 1445 of 2008
Decided on 11-12-2008
For the Petitioners:Mr. S.R. Chitnis Sr. Advocate with Mr. Sameer M. Mangaonkar, Advocates.
For the Respondents:Mr. Anil Agarwal, Advocate.
IMPORTANT POINTS
1. Before a person can be held vicariously liable under Section 141 of N.I. Act, complaint must demonstrate that statutory requirements contained in Section 141 of said Act had been complied with.
2. While recording a statement under Section 200 of Cr.P.C., Magistrate cannot merely reproduce data in a pre-conceived format.
Headnote:(i) Negotiable Instruments Act, 1881—Sections 138 and 141—Complaint alleging dishonour of cheque against company and its directors—Petition there against issue of process on plea that material averments in terms of Section 141 of Act had not been made in complaint—Specific averments in complain that second to sixth accused were all in charge of and control of day to day affairs and management of accused/company—Further averment in complaint that accused No.5 was chairman of said company and that second to sixth accused were responsible for conduct of business of accused No.1 company—Hence so far as complaint was concerned there were sufficient averments made in compliance with Section 141 of said Act. (Para 14)
(ii) Negotiable Instruments Act, 1881—Sections 138 and 141—Criminal Procedure Code, 1973—Section 200—Complaint alleging dishonour of cheque—Petition against issue of process against company and its directors on plea that verification statement was totally silent about existence of ingredients of Section 141 of Act—It is the obligation of Magistrate under Section 200 of Cr.P.C. to examine the complainant—Said provision enjoins a judicial duty to be performed by Magistrate which requires an application of judicial mind—Said work of recording the statement cannot be done mechanically by simply filling details such as date of cheque, name of Bank, date of intimation of dishonour of cheque etc. in a format which is already kept ready—Instantly, statement of the complainant had been recorded by Magistrate in a format which was already kept ready before commencement of recording of statement—If a verification statement is mechanically recorded in a format, it is obvious that a complainant would be deprived of an opportunity to disclose material particulars of factual aspects on oath—Hence Magistrate failed to perform his duty under Section 200 of Cr.P.C.—Impugned orders of issue of process passed by Magistrate quashed and set aside—Complaint remanded and relegated to stage of recording statement under Section 200 of code with direction to Magistrate to record statement afresh in accordance with law. (Paras 22 to 28)
A.S. Oka, J.—On 17.7.2008, in these two petitions, this Court issued notice for final disposal at the admission stage. Further submissions were heard by this Court on 21.8.2008 and 8.9.2008.
2. When the petitions were placed before this Court (Coram: V.K. Tahilramani J.) on 8.10.2008, the registry was directed to place these petitions before the Hon’ble the Chief Justice for appropriate orders as a contention was raised that the petitions have been substantially argued before this Court. Accordingly, by an administrative order dated 20.10.2008 passed by the Hon’ble the Chief Justice, these petitions have been assigned to this Court. Accordingly, the petitions were taken up for final hearing on 21.11.2008.
3. It is not in dispute that the facts leading to filing of these two petitions are more or less identical. Therefore, a reference is made to the facts of the case in Criminal Writ Petition No.1444 of 2008. The first respondent filed a private complaint against the petitioners and four others alleging commission of an offence under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “the said Act”). The complaint is based on eight cheques issued by M/s. Premier Explochem Limited (the first accused) in favour of the first respondent in discharge of the alleged liability of the said M/s Premier Explochem Limited (hereinafter referred to as ‘the said Company’). The petitioners have been arranged as fifth and sixth accused in the said complaint. As stated earlier, the first accused is the said Company. The case of the first respondent made out in the complaint is that the petitioners along with second to fourth accused are the Directors of the said Company. The fifth accused (the first petitioner) is alleged to be the chairman of the said Company. It is stated that second and third accused are the Directors of the said Company and also signatories to the cheque subject matter of the complaint. It is alleged that the petitioners and second to fourth accused have from time to time negotiated with the first respondent and placed orders for supply of goods. It is alleged that the petitioners and second to fourth accused from time to time promised that the dues of the first respondent will be paid. It is alleged that the petitioners and second to fourth respondents are in-charge and in control of the day-to-day affairs and management of the said Company and they have issued the concerned cheques in consultation with each other. It is alleged that the petitioners and the second to fourth accused take decisions of day-to-day working of the said Company and they are responsible for the conduct of the business of the said Company. Further allegation made in the complaint is the dishonoured cheques were not deposited for some time by the first respondent on instructions of the first petitioner. The first respondent alleged that subsequently on instructions being received from the first petitioner and the second and third accused, the first respondent deposited the cheques and the same were dishonoured.
4. Verification statement of one Mr. Shyam Manglunia was recorded by the learned Metropolitan Magistrate, 43 Court, at Borivali, Mumbai and process was issued against all the accused including the petitioners on 2.9.2007 for an offence punishable under Section 138 of the said Act.
5. The petitioners filed a revision application under Section 397 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the said Code”) before the Court of Sessions for Greater Mumbai, at Dindoshi (Borivali Division) for challenging the order passed by the Magistrate of issuing the process on the private complaint of the first respondent. The learned Additional Sessions Judge dismissed the said revision application by judgment and order dated 17.6.2008.
6. By these petitions under Article 227 of the Constitution of India, the petitioners have challenged the order passed by the learned Magistr
