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Gujarat High Court
Judgename :C.K.BUCH
SITA RAM SINGHANIA - Appellant
Versus
STATE OF GUJARAT - Respondent
CRIMINAL REVISION APPLICATION 167 of 2004
Decided On : 07/13/2004
Negotiable Instruments act, 188, - Sections 138,141 - Negotiable Instrument act,2002 - Section 7 - Companies Act, Sections 446 (1), 446 (1) - (Sick Industrial Companies Act), Section 15,42 - Code of criminal Procedure - Sections 2 (N),18,20 - 178 (D) - Companies Act - Section 442 - Indian Contract act - Sections 49,42 - Petitioners of both these Revision Applications are the accused of Criminal Case pending in the Court of learned Judicial Magistrate First Class respondent State Fertilizers Company Ltd. - Original complainant of the aforesaid criminal cases instituted for the offence punishable under of the Negotiable Instruments act, - Criminal complaint came to be filed against four accused persons the accused could not be served by the original complainant he has been deleted from the complaint vide order dated passed by the Court below submitted by the original complainant - Accused Synthetics and as per the say of the complainant-G. S. F. C. , the accused was the managing Director of the said company and the accused was the whole- time Director - After service of summons the petitioners-accused submitted one application on to drop the proceedings alleging that the Court of learned Judicial Magistrate First Class at had no territorial jurisdiction to try the alleged offence - Hearing of the said application was fixed initially had also submitted one more application referring of the Companies and prayed that the proceedings before Court in respect of criminal cases may not be proceeded with in view of the order of winding-up dated passed by the High Court of and the appointment of Official Liquidator of the accused No. 4-Company - Court. accused No. 4-Esslon Synthetics Ltd. is situated at and the registered office of the said Company is at Kanpur - Accused was the whole-time Director and the accused was the Managing director of the accused -Company - Accused -Company was the customer of and it was purchasing which is used for manufacturing synthetics. According to the complainant normally the credit facility was being given to the accused -Company - Held, Court reaches to a conclusion that the amount of fine, if imposed in the event of company being convicted then such imposition of fine should be with the consent of b. I. F. R. So by consent of B. I. F. R. , the Courts dealing with winding-up proceedings or the Official Liquidator having sufficient fund then in accordance with relevant law and the rules framed under the Companies Act, the amount of compensation can also be awarded and paid to the holder of the cheque - In conclusive part of the decision in the case of B. S. I. Ltd. (supra), the Apex court has held that Conclusion that we have to draw is that if commission of the offence under Sec. of the N. I. Act was completed before the commencement of proceedings under Sec. (1) of S. I. C. A. there is no hurdle in any of the provisions of S. I. C. A. against the maintainability and prosecution of a criminal complaint duly instituted under Sec. of the N. I. Act - Decisions rendered by the High Courts, which are assailed before us in this batch of appeals are therefore not liable to be interfered with - Appeals are accordingly dismissed. Special leave petitions heard along with the above appeals are also hence dismissed - Court has held that . On a reading of provisions of Sec. of the N. I. Act it is clear that the ingredients which are to be satisfied for making out a case under the provision are - Person must have drawn a cheque on an account maintained by him in a Bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability has been presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier that cheque is returned by the Bank unpaid, either because the amount of money standing to the credit of the account is insufficient to the or that it exceeds the amount arranged to be paid from that account by an agreement made with the Bank the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer within days of the receipt of information by him from the Bank regarding the return of the cheque as unpaid the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within days of the receipt of the said notice - learned Senior Counsel appearing for the respondent -Company. In the say - Learned senior Counsel appearing for the petitioners, has sufficient strength as the facts of the present case are materially different than those decisions brought to the notice of this Court by him. So the Court is inclined to dismiss both these revision - Applications are hereby dismissed.
( 1 ) THE petitioners of both these Revision Applications are the accused of Criminal Case Nos. 1947 and 1949 of 1995, pending in the Court of learned Judicial Magistrate, First Class (4th Court) at Vadodara. The respondent no. 2-Gujarat State Fertilizers Company Ltd. , Vadodara (hereinafter referred to as the G. S. F. C. ) is the original complainant of the aforesaid criminal cases instituted for the offence punishable under Sec. 138 of the Negotiable Instruments act, 1881 (hereinafter referred to as the N. I. Act ). A criminal complaint came to be filed against four accused persons. However, as the accused No. 3 could not be served by the original complainant, he has been deleted from the complaint vide order dated 14th October, 2003, passed by the Court below Exh. 49 submitted by the original complainant. The accused No. 4 is Esslon Synthetics ltd. and as per the say of the complainant-G. S. F. C. , the accused No. 1 was the managing Director of the said company and the accused No. 2 was the whole- time Director. After service of summons, the petitioners-accused Nos. 1 and 2 (hereinafter referred to as the accused Nos. 1 and 2) submitted one application on 12th February, 1996 at Exh. 19 to drop the proceedings alleging that the Court of learned Judicial Magistrate First Class at Vadodara, had no territorial jurisdiction to try the alleged offence. Hearing of the said application was fixed initially on 31st January, 1997. The accused Nos. 1 and 2 had also submitted one more application referring Sec. 446 (1) of the Companies Act, 1956 and prayed that the proceedings before the Court in respect of criminal cases may not be proceeded with in view of the order of winding-up dated 27th March, 1996 passed by the High Court of Allahabad and the appointment of Official Liquidator of the accused No. 4-Company.
( 2 ) TO appreciate the rival contentions and submissions placed before this court, it is necessary to state facts in brief that has brought the controversy before this Court. The accused No. 4-Esslon Synthetics Ltd. is situated at New delhi and the registered office of the said Company is at Kanpur. The accused no. 2 was the whole-time Director and the accused No. 1 was the Managing director of the accused No. 4-Company. The accused No. 4-Company was the customer of the G. S. F. C. , and it was purchasing caprolactam, which is used for manufacturing synthetics. According to the complainant-G. S. F. C. , normally the credit facility was being given to the accused No. 4-Company, and accordingly, the complainant had supplied caprolactam to the accused No. 4- company during the period from March, 1995 to June, 1995 as per the lifting schedule decided and order placed with the complainant. The complainant was despatching the material to the accused No. 4-Company against the Post-Date cheques (for short p. D. Cs.) of specific amount on various dates. It is contended by the complainant that during the initial period of transaction with the accused no. 4-Company, the P. D. Cs. given by the accused Nos. 1 and 2 on behalf of the accused No. 4-Company were honoured on presentation. According to the complainant, the accused No. 4-Company had issued four P. D. Cs. for purchase of caprolactam to the tune of Rs. 92,82,172/ -. The said cheques on supply of material were deposited by the complainant-G. S. F. C. in its Bank account with the A. N. Z. Grindlays Bank at Connaught Circle Branch, New Delhi for clearing but the said P. D. Cs. were returned unpaid by the State Bank of india at Kasturba Gandhi Road Branch, New Delhi, for the reason, "insufficient Fund". The complainant received these cheques with the memo of the Bank on 10th July, 1995, and therefore, the complainant served a notice to the accused no. 4-Company at Kanpur and Director at New Delhi, through their Advocate on 24th July, 1995, calling upon them to pay the entire sum with interest till that date. This notice has been posed as a statutory notice contemplated
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