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2006 Supreme(Cal) 4
High Court Of Calcutta
Arun Kumar Bhattacharya
PREMIER MEDICAL SUPPLY AND STORES PROPRIETOR PREMIER DISTRIBUTORS (CALCUTTA) PVT.LTD. - Appellant
Versus
PHARMA TRADERS - Respondent
C. R. A 355 Of 2001
Decided On : 01/04/2006
Niloy Bhattacharya, Tirthankar Ghosh
The power of the High Court to set aside an order of acquittal at the instance of a private party is to be exercised only in exceptional cases of glaring defect of procedure or manifest error on a point of law resulting in flagrant miscarriage of justice.
Headnote:
NEGOTIABLE INSTRUMENTS ACT, 1881 - SECTIONS 138, 141, 142 - COMPANIES ACT, 1956 - SECTION 291 - JURISDICTION - RETRIAL - APPEAL - ACQUITTAL - POWER OF HIGH COURT - SCOPE - GROUNDS - JURISDICTIONAL ERROR - INADMISSIBILITY OF EVIDENCE - MATERIAL EVIDENCE OVERLOOKED - COMPOUNDING OF OFFENCES - EXCEPTIONAL CASES - COMPANY - REPRESENTATION BY DEFACTO-COMPLAINANT - AUTHORIZATION - SUBSEQUENT RECTIFICATION - RELATIONSHIP BETWEEN PARTIES - DEMAND NOTICE - TIMING.
Fact of the Case:
The complainant, a private limited company, filed a complaint under Section 138 read with Section 141 of the Negotiable Instruments Act against the accused, alleging dishonor of a cheque issued by the accused firm. The accused were acquitted by the trial court on the grounds that the authorization given to the complainant's representative was not maintainable, the relationship between the parties was not established, and the demand notice was issued after the authorization. The complainant appealed against the acquittal.
Finding of the Court:
The High Court allowed the appeal, set aside the acquittal, and remanded the matter back to the trial court for a fresh hearing. The High Court held that the trial court erred in holding that the authorization was not maintainable, as the company could rectify any defect in authorization at any stage by sending a duly authorized representative. The High Court also held that the relationship between the parties was established by the authorization itself, and that the timing of the demand notice was not relevant as long as it was issued before the initiation of the proceedings.
Issues: 1. Whether the authorization given to the complainant's representative was maintainable. 2. Whether the relationship between the parties was established. 3. Whether the demand notice was issued in accordance with the law.
Ratio Decidendi: 1. A company can rectify any defect in authorization at any stage by sending a duly authorized representative. 2. The relationship between the parties is established by the authorization itself. 3. The timing of the demand notice is not relevant as long as it is issued before the initiation of the proceedings.
Final Decision: The High Court allowed the appeal, set aside the acquittal, and remanded the matter back to the trial court for a fresh hearing.
( 1 ) THE hearing stems from an appeal preferred against the judgment and order dated 30. 05. 2001 passed by the learned Metropolitan Magistrate, 5th Court, Calcutta in Case No. C. 672/95 (T. R. No. 352/95) under Section 138 read with Section 141 of the Negotiable Instruments Aqt acquitting the accused persons.
( 2 ) SHORTLY put, the prosecution case is that the complainant filed a complaint being registered as Case No. C-672/95 under Section 138 read with Section 141 of the Negotiable Instruments Act inter alia alleging that accused No. 1 is a partnership firm and, accused Nos. 2 to 4 being partners of the same are responsible for the day to day conduct of the business of the said firm. In discharge of their liabilities the accused persons issued an account payee cheque bearing No. 014123 dated 28. 03. 95 for rs. 1,89,363. 54 p. drawn on U. B. I. , Santoshpur Branch, Calcutta-700 032. After presentation of the said cheque by the complainant to its banker bank of India, Calcutta Main Branch, Calcutta 700 001, it was returned on 25. 04. 95 with the remark "insufficiency of funds". Despite the notice dated 04. 05. 95 sent by the complainant, the accused persons failed to pay any amount. Hence, the accused persons were charged under Section 138 read with Section 141 of the Negotiable Instruments Act.
( 3 ) THREE witnesses on behalf of the complainant while one witness on behalf of the defence were examined, and after considering the facts, circumstances and materials-on-record, the learned Court below found the accused persons not guilty and acquitted them of the said charge.
( 4 ) BEING aggrieved by and dissatisfied with the said order, the complainant has preferred the present appeal.
( 5 ) ALL that now requires to be considered is whether the learned court below was justified in passing the above order.
( 6 ) MR. Ghosh learned Counsel for the appellant, on referring the cases of Arun Kumar Dutta v. M. M. Upadhyay, reported in 1997 (II) CHN 508, M/s. M. B. Industries and Co. v. Gajanand Khandelwal, reported in 1998 (II) CHN 252 and M. M. T. C. Ltd. v. Medchl Chemicals and Pharma (P) Ltd. , reported in 2002 SCC (Cr.) 121 advanced argument contending that notice dated 04. 05. 95 (Ext. 4) was issued by Sri J. C. Gupta in the capacity of principal Officer of the Company whereas the said Sri Gupta instituted the case being duly authorized (Ext. 3), and so the learned Court below was erred in law in holding the said authorization as not maintainable. Mr. Mukherjee, learned Counsel for the respondents, on the other hand, in supporting the impugned judgment contended that since authorization was given by Sri Joygopal Banerjee, presumably in his individual capacity, and not in conformity with the provisions of Section 291 of the Companies act and as such is bad in law, there is no material to interfere with the impugned judgment.
( 7 ) IT is only in glaring cases of injustice resulting from some violation of fundamental principles of law by the trial Court that the High Court is empowered to set aside the order of acquittal and direct a retrial of the acquitted accused. The power should be exercised sparingly and with great care and caution. The revisional power of the High Court is much restricted in its scope, as was held in the case of Bansi Lal v. Laxman Singh, reported in AIR 1986 SC 1721. Similar, observation finds place in the case of chinnaswamy v. Andhra Pradesh, reported in AIR 1962 SC 1788 and in subsequent decisions that the power of the High Court to set aside an order of acquittal at the instance of a private party is to be exercised only in exceptional cases of glaring defect of procedure or manifest error on a point of law resulting in flagrant miscarriage of justice. As sub-section (3)of Section 401 forbids the conversion of a finding of acquittal into one of conviction it places a limitation on the power of the High Court to set aside an acquittal order which should be exercised only in ex
