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2010 Supreme(UK) 336
2010 (2) N.C.C. 577
UTTARAKHAND HIGH COURT
Hon’ble Mr. Justice B.S. Verma
Criminal Misc. Application (C-482) No. 20 of 2004
GARHWAL MANDAL VIKAS NIGAM LTD. & ORS. – Applicants
Versus
M/S. MATA GARG & CO. CHARTERED ACCOUNTANTS – Respondents
Decided on : 08.06.2010
For the Applicants :Mr. U.K. Uniyal, Sr. Advocate with Mr. Sandeep Kothari, Advocate
For the Respondent No. 1:Mr. S.K. Jain, Advocate
For the Respondent No. 2: Mr. B.S. Parihar, Brief Holder
Headnote:(A) Criminal Procedure Code, 1973, Secs. 204, 397, 482 — Held that against the summoning order passed by the Magistrate u/Sec. 204 of the Cr.P.C. — No revision maintainable — Only course open to the applicants was to approach this Court in an application u/S 482 of the Criminal Code. (Paras 18, 19)
(B) Negotiable Instrument Act, 1881, Secs. 138, 141 — Notice — Mandatory requirement — Held — Whenever any person is sought to be made liable for an offence u/S 138 r/w Sec. 141 of the Act — Service of statutory notice on the person sought to be made liable is essential amongst other essential ingredients. (Para 22)
(C) Negotiable Instrument Act, 1881, Sec. 138 and Second proviso to Sec. 141(1) — Held that the second proviso appended to Section 141(1) of the Act gives protection to applicant nos. 2 and 3 from prosecution, not acceptable — Undisputedly, the applicant nos. 2 and 3 being full time appointed Officers, i.e. Managing Director and General Manager of the applicant no. 1 — Hence, the second Proviso to Section 141(1) of the Act, is not at all attracted to the present case. (Para 26)
(D) Criminal Procedure Code, 1973, Sec. 197 — It was held that the protection by way of sanction u/sec 197 of the Criminal Code is not applicable to the officers of government companies — Or the public undertakings even when such public undertakings are "State" within the meaning of Article 12 of the Constitution, on account of deep and pervasive control of the Government. (Para 27)
¼v½ n.M izfd;k lafgrk] 1973] /kkjk 204] 397] 482 & fu.kZ; esa dgk x;k /kkjk 204 lhvkj ih lh ds rgr n.Mkf/kdkjh }kjk ikfjr lEefuax vkns'k ds fo#) iqujh{k.k ;kfpdk iks"k.kh; ugha gS & izkFkhZ ds fy, ek= ,d fodYi [kqyk Fkk fd og /kkjk 482 lhvkj ih lh ds vUrxZr izkFkZuk i= nk;j djds bl U;k;ky; esa igqaprkA ¼izLrj 18] 19½
¼c½ ijkdE; fy[kr vf/kfu;e] 1881] /kkjk 138] 141 & uksfVl dk fn;k tkuk vkns'kkRed vko';drk gS & fu.kZ; esa dgk x;k tc dksbZ O;fDr /kkjk 138 lifBr /kkjk 141 NIA ds vUrxZr vijk/k dk mRrjnk;h cuk;k tk, rks ,sls O;fDr dks vU; rRoksa dh iwfrZ ds lkFk&lkFk uksfVl dh rkehy djk;k tkuk vko';d gSA
¼izLrj 22½
¼l½ ijkdE; fy[kr vf/kfu;e] 1881] /kkjk 138 vkSj /kkjk 141¼1½ dk f}rh; izkfoèkku & fu.kZ; esa dgk x;k fd /kkjk 141¼1½ dk izkfo/kku izkFkhZ ua- 2 vkSj 3 dks vfHk;kstu ls NwV gS] Lohdk;Z ugha gS & fufoZokn :i ls izkFkhZ ua- 2 vkSj 3 iw.kZ dkyhu fu;qfDr'kqnk vf/kdkjh gksus ds dkj.k vFkkZr izkFkhZ ua- 1 dk izcU/k funs'kd vkSj lkekU; O;oLFkkid gksus ls /kkjk 141¼1½ dk f}rh; izkfo/kku izLrqr dsl esa ykxw ugha gksrkA ¼izLrj 26½
¼n½ n.M izfd;k lafgrk] 1973] /kkjk 197 & fu.kZ; esa dgk x;k Fkk fd /kkjk 197 lhvkj ih lh ds vUrxZr Lohdfr ds }kjk vkj{k.k ljdkjh dEifu;ksa ds vf/kdkfj;ksa ij ykxw ugha gS & vFkok ifCyd vUMjVsfdax ij tcfd os jkT; ljdkj ds vUrxZr gksa ;k vuqPNsn 12 Hkkjrh; lafo/kku ds rgr Hkkjrh; ljdkj ds lh/ks fu;a=.k okyh vaMjVsfdax gksA ¼izLrj 27½
This application under Section 482 of the Code of Criminal Procedure has been moved by the applicants to quash the proceedings of Case No. 334 of 2000 under Section 138 of the Negotiable Instruments Act, 1881 (for short the Act) pending in the court of Judicial Magistrate II Dehradun.
2. Relevant facts giving rise to the present application, in brief, are that the respondent no. 1 was appointed as Auditors of the company for the year 1993-94 for Garhwal Mandal Vikas Nigam Ltd. And the respondent no. 1 submitted its bill dated 30.11.1998 to the applicant no. 1 for the amount of Rs. 1,36,115/-, out of which amount of Rs. 32,315/- was in lieu of travelling and out of pocket expenses. It appears that no vouchers/documents were submitted by the respondent no. 1 in support of travelling and out of pocket expenses at the time of submission of bill and the same were even not submitted thereafter.
3. A cheque No. 174624 dated 8.3.2000 for an amount of Rs. 34,393/- payable at Ganga Yamuna Gramin Bank Dehradun along with covering letter dated 15.3.2000 was issued in favour of the respondent no. 1 against part payment of the said bill in lieu of travelling and out of pocket expenses and service tax. In the covering letter the applicant no. 1 had asked the respondent no. 1 to submit the bills of expenditures to the applicants and then to tender the cheque for encashment to the bank. A copy of the covering letter was also endorsed to the bank concerned with stop payment remark. However, the respondent no. 1 presented the cheque No. 174624 dated 8.3.2000 for Rs. 34,393/- to the bank for encashment, which was returned to the respondent no. 1 with the remark “payment stopped”.
4. It appears that after the cheque was returned by the Bank with the remark “stop payment by the drawer” to the respondent no. 1, the respondent no. 1 issued a registered notice dated 21.3.2000 to Garhwal Mandal Vikas Nigam Ltd. Dehradun asking the applicant no. 1 to send demand draft for the aforesaid amount within a period of fifteen day from the date of receipt of the notice. The applicants sent reply of the registered notice by letter dated 4.4.2000 to the respondent no. 1 alleging therein that the respondent no. 1 was required to submit the vouchers of expenses before tendering the cheque to be bank for encashment.
5. A complaint was filed by the respondent no. 1 against the three applicants under Section 138 of the Act in the court of the Chief Judicial Magistrate Dehradun. In paragraph 8 of the complaint, the respondent no. 1 had mentioned that vide notice dated 21.3.2000 sent by registered post on 22.3.2000, complainant intimated the accused No. 1 about the fate of the said cheque and made a demand for the payment of the amount of said cheque within fifteen days of the receipt of notice. The complaint was registered as Criminal Case No. 334 of 2000 in the Court of Judicial Magistrate, II Dehradun.
6. It appears that the learned Magistrate after satisfying himself that there is sufficient ground for proceeding with the complaint, passed an order dated 12.6.2000 summoning the accused-applicant nos. 1 to 3 to answer the complaint. The accused-applicants filed objection, paper no. 18-A dated 27.11.2000 before the learned Magistrate. However, the learned Magistrate after hearing both the parties did not find favour with the applicants’ objection and rejected the same by his order dated 14.6.2001. Aggrieved by that order, the applicants preferred a revision before the revisional court. The revisional court after hearing the parties has observed that the applicant no. 2 is not protected under Section 197 of the Code of Criminal Procedure. The revisional court also did not find favour that the applicant no. 2 is protected from prosecution under proviso second appended to Section 141(1) of the Act. Ultimately, the revision was dismissed vide order dated 18.11.2003.
7. The applicants have approached this Court by making an application under Section 482 of the Cod
