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2012(2) Bankmann 100 (Chhatt.)
CHHATTISGARH HIGH COURT
T.P. Sharma, J.
Prashant and Ors. —Petitioners
versus
M/s. Astha Innovation Pvt.
Ltd. —Respondent
Criminal Misc. Petition No. 215 to 217 of 2012
Decided on 8.5.2012
(ii) Negotiable Instruments Act, 1881—Sections 138 and 141(1)—Dishonour of cheque—Offence by company—In order to satisfy provisions of Section 141 (1) complainant is required to make specific allegation against members of Board of Directors that how they are responsible for conduct of business of Company—Only allegation that they are members of Board of Directors and, therefore, responsible for conduct of business of Company is not sufficient averment for taking cognizance and issuing process against members of Board of Directors. (Para 13)
(iii) Negotiable Instruments Act, 1881—Section 138—Criminal Procedure Code, 1973—Sections 200 , 202(2) and 482—Dishonour of cheque—Cognizance—Non-examination of any or some of witnesses cited by complainant is, by itself, not sufficient to denude Magistrate of jurisdiction to take cognizance and issue process—Magistrate is competent to issue process straightaway without holding enquiry but if he holds enquiry and fails to comply with provisions even then same would not vitiate further proceeding—Evidence can be taken under Section 202 of Cr.P.C. on affidavit in terms of Section 145 of Evidence Act—By issuing process trial Court has not committed any illegality requiring any interference in exercise of extraordinary inherent jurisdiction in terms of Section 482 of Cr.P.C. (Paras 19 , 20 and 27)
(iv) Criminal Procedure Code, 1973—Sections 200 and 202—Enquiry—During course of enquiry , Enquiry officer has to satisfy himself simply on the evidence adduced by prosecution whether prima facie case has been made out so as to put proposed accused on a regular trial—No detailed enquiry is called for during course of such enquiry. (Para 24)
T.P. Sharma, J.— Since the above petitions filed for quashment of criminal complaint cases are involving common question, they are being disposed of by this common order.
2. By filing Cr.M.P.No.215/2012 under Section 482 of the CrPC, the petitioners have challenged legality and propriety of the order dated 12.11.2010 passed by the Judicial Magistrate First Class, Raipur in Criminal Complaint Case No.832/2011, whereby the trial Court has registered complaint against the petitioners for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the Act’).
3. By filing Cr.M.P.No.216/2012 under Section 482 of the CrPC, the petitioners have challenged legality and propriety of the order dated 11.10.2010 passed by the Judicial Magistrate First Class, Raipur in Criminal Complaint Case No.831/2011, whereby the trial Court has registered complaint against the petitioners for the offence punishable under Section 138 of the Act.
4. By filing Cr.M.P.No.217/2012 under Section 482 of the CrPC, the petitioners have challenged legality and propriety of the order dated 8.11.2010 passed by the Judicial Magistrate First Class, Raipur in Criminal Complaint Case No.4/2011, whereby the trial Court has registered complaint against the petitioners for the offence punishable under Section 138 of the Act.
5. Following common questions of law emerge in these three petitions:
(1) Whether, non-compliance of the amended provisions of Section 202 (1) of the CrPC regarding enquiry, especially in case of accused residing outside the jurisdiction of the Court and even in case of complaint for the offence punishable under Section 138 of the Act, vitiates the criminal proceeding?
(2) Whether, specific allegation against the petitioners/members of the Board of Directors of the Company relating to conduct of business of the company is sine qua non in terms of Section 141 (1) of the Act?
(3) Whether, the allegation made in the complaint satisfies the requirement of Section 141(1) of the Act?
(4) Whether, mere issuance of notice gives cause of action for filing complaint?
6. As per brief facts, the petitioners are members of the Board of Directors of Shri Giriwar Enterprises Pvt. Ltd., a Company which runs wholesale business of steel and they are responsible for the conduct of business of the Company. They used to purchase steel from the respondent on credit basis. Cheques for payment of dues have been issued by the accused persons which were presented for encashment before Axis Bank, Nagpur, and same were dishonoured on the ground of payment stopped by the drawer. Information was given by Axis Bank, Nagpur to the respondent. Notice under Postal Certificate (UPC) has been served upon the accused persons including the petitioners. When same has failed to satisfy the demand, registered notice was issued to the accused persons including the petitioners and same was received back un-served with an endorsement that they are regularly absent on the given address. Thereafter, complaints for the offence punishable under Section 138 of the Act were filed by the respondent. The respondent has examined K.Ravi Shankar, authorized authority of the respondent, on affidavit. On the basis of aforesaid affidavit, complaint has been registered against the accused persons including the petitioners and process has been issued.
7. I have heard learned counsel for the petitioners and perused the orders impugned.
8. Learned counsel for the petitioners submitted that in case of order taking cognizance on the basis of complaint, Courts are required to comply with the procedure prescribed in Chapter XV of the CrPC and the Court is required to examine the complainant on oath. In the present case, all the accused persons are residents of the area beyond the area which the Court exercises the jurisdiction and, therefore, it was sine qua non upon the Court to enquire into the case in accordance with the provisions of Section 202 (1) of the CrPC. How
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