Research › Search › Judgment

Bombay High Court · body

2005 DIGILAW 210 (BOM)

Hasmukh Hansraj Gala v. Abhay Mukund Bharti

2005-02-16

S.T.KHARCHE

body2005
Judgment KHARCHE S. T. ,J. ( 1 ) INVOKING the jurisdiction of this Court under section 482 of the Code of Criminal Procedure, the applicant in both the applications seek the relief of quashing the Criminal Complaint Case Nos. 391 of 2000 and 664 of 2000 instituted by respondent No. 1 in the courts of J. M. F. C. at Nagpur and Darwha respectively for the offence punishable under section 500 of Indian Penal code in both the matters, common questions are involved and therefore they are being disposed of by this common judgment. ( 2 ) BRIEF facts are required to be stated as under : the applicant is engaged in the business of manufacturing and supply of chemicals since about 20 years whereas respondent No. 1 is said to be the director of the Company which is named and styled as M/s Nagpur Detergent Pvt. Ltd. The applicant had business dealing with the said company. The managing Director of the said company had issued the cheques for payment of consideration for the material supplied by the applicant. In all, 14 cheques weie bounced on different dates and therefore the applicant had filed criminal prosecution against respondent No. 1 as well as against the Managing director and other two Directors of the Company The first cnmmal complaint was filed on 20-8-1996 which was numbered as Cnmmal Case No. 480/s/97 and the other criminal complaint was filed in the month of October, 1996 which was numbered as 534/s/97. Both the complaints were filed at Bombay on the allegation that the respondent No. 1/accused had committed the offence punishable under section 420 of Indian Penal Code read with section 138 of the Negotiable Instruments Act (for short the Act ). The Metropolitan magistrate had issued process against all the accused for the aforesaid offences and thereafter the respondent No. 1 has filed the criminal complaint on 14-7-2000 which was numbered as Cnmmal Case No. 391 of 2000 in the Court of Judicial Magistrate, First Class, Nagpur, and the second cnminal complaint was filed on 5-8-2000 in the Court of learned J. M. F. C. at Darwha against the petitioner for the offence punishable under section 500 of Indian penal Code. The learned Magistrate issued process against the petitioner in both the criminal cases. Therefore the applicant has filed these applications for quashing of both the criminal prosecution. ( 3 ) MR. The learned Magistrate issued process against the petitioner in both the criminal cases. Therefore the applicant has filed these applications for quashing of both the criminal prosecution. ( 3 ) MR. Voditel, learned Counsel, for the applicant contended that the respondent no 1 had alleged in the criminal prosecution filed at Bombay and that he knew that accused Nos. 2, 3 and 4 were the Directors of the Company and they were the persons in charge of the business of the company and were responsible for the day to day affairs of the company and that they were dealing in detergent at Nagpur and they handed over to him three cheques towards the discharge of their liability and that the aforesaid cheques were issued by the accused persons in part discharge of their liability and they having failed to make the payment in spite of the receipt of the said notice, deemed to have committed the offence punishable under section 420 of indian Penal Code read with section 138 of the Act. He contended that these allegations mentioned in the criminal prosecution filed at Bombay does not per se amount to defamation within the meaning of section 499 of Indian penal Code, more particularly in explanation 4th and 5th and exception 8th and 9th. He contended that the criminal complaints lodged by respondent no. 1 at Nagpur and Darwha Courts are only filed to give counter blast to the prosecution instituted by the applicant and only for the harassment. He contended that if the criminal prosecution against the petitioner is allowed to continue, it would amount to abuse of the process of the Court. In support of these submissions he relied on the decision of Apex Court in the case of (Rajappa Hanamantha Ranoji v. Mahadeo Channabasappa and others), 2000 (6) s. C. C. 120 wherein it was held that where unscrupulous litigants adopt dubious methods, including filing of fraudulent litigation, to defeat the order of courts, the Court must take serious note and pass appropriate orders and issue necessary directions, which may include imposing of exemplary costs. ( 4 ) THE learned Counsel for the applicant further contended that the respondent no. 1 has mentioned in the criminal complaints lodged by him that the cause of action for those complaints arose when the criminal prosecution was launched against him and the company and its Directors at Bombay. ( 4 ) THE learned Counsel for the applicant further contended that the respondent no. 1 has mentioned in the criminal complaints lodged by him that the cause of action for those complaints arose when the criminal prosecution was launched against him and the company and its Directors at Bombay. He contended that the criminal complaints filed by respondent No. 1 against the applicant at Nagpur and Darwha on 14-7-2000 and 5-8-2000 respectively are barred by the period of limitation. He contended that the limitation was begin to run from the date on which the cause of action arose and according to him as per the provisions of section 468 (1), (2) (c) of the Code of Criminal Procedure the criminal complaints ought to have been instituted within three years and since the prosecution has been launched beyond the period of three years, it is obvious that both the criminal complaints are barred by the period of limitation. He, therefore, contended that the criminal prosecution in both the criminal complaints launched by respondent No. 1 is liable to be quashed. ( 5 ) MR. Sudame, learned Counsel, for respondent No. 1 Abhilesh and one nilesh Bharti who are shown as accused in the criminal complaint lodged at bombay by the applicant have been discharged for the offence punishable under section 138 of the Negotiable Instruments Act as per the order dated 22-1-2003 passed by the learned Metropolitan Magistrate (31st Court), Bombay. He further contended that the prosecution launched against the petitioner cannot be quashed and this Court should normally refrain from giving prima facie decision when the entire facts of the case are incomplete and hazy and when the evidence has not been collected and the issues involved could not be seen in their true perspective. He contended that it is only the Magistrate who can consider the evidence which may be led before him for coming to the conclusion as to whether prima facie case exists for proceeding against the petitioner for the offence punishable under section 500 of Indian Penal code and, therefore, the said criminal prosecution cannot be quashed. In support of these submissions, he relied on the decision of Supreme Court in the case of (State of Andhra Pradesh v. Goloconda Linga Swamy and another), a. I. R. 2004 S. C. 3967. In support of these submissions, he relied on the decision of Supreme Court in the case of (State of Andhra Pradesh v. Goloconda Linga Swamy and another), a. I. R. 2004 S. C. 3967. ( 6 ) THE learned Counsel for respondent No. 1 also contended that at this stage this Court cannot go into the question of limitation and it would depend upon the facts and circumstances of the case. He contended that the disputed issue as to limitation under sections 468 to 473 of the Code of Criminal procedure cannot be appropriately raised in High Court for quashing of the proceedings under section 482 of the Code of Criminal Procedure. In support of these submissions, he relied on the Full Bench decision of Patna High court in the case of (Ram Kripal Prasad and another v. State of Bihar), 1985 cri. L. J. 1048. ( 7 ) THIS Court has given thoughtful consideration to the contentions canvassed by the learned Counsel for the parties. It is not in dispute that the applicant had filed two private criminal complaints at Bombay-one on 20-8- 1996 and the other in the month of October, 1996 respectively against respondent no. 1 as well as the company and its Directors including the Managing director for the offence punishable under section 420 of Indian Penal code and 138 of the Negotiable Instruments Act. It is also not in dispute that the original accused Nos. 3 and 4 had filed application for discharge in the said criminal prosecution. The learned Metropolitan Magistrate (31st Court) by his order dated 22-1-2003 discharged them for the offences punishable under section 138 of Negotiable Instruments Act. It is also not disputed that both the private criminal complaints are pending in that Court. ( 8 ) SO far as rest of the accused including the company i. e. M/s Nagpur detergent Ltd. is concerned, the learned Magistrate has observed in para 6 of his order as under :"it is an admitted position that accused No. 3 Abhay Bharati an accused No. 2 Nilesh Bharati are not signatories of the cheques which were issued on behalf of the accused No. 1. When the process was issued against all accused at that time accused were not before the Court and in their absence process was issued and, therefore, there was no reason for the accused to produce any certificate from the Competent Authority on record. Now, in this case accused persons have placed on record certificate issued by the Registrar of companies showing therein that the accused No. 2 Mukund Bharati and one Smt. Aruna Bharati are the directors of the accused No. 1 i. e. Nagpur Detergent Pvt. Ltd. The said certificate is issued by Competent Authority and as such it is a public document within the meaning of section 74 of Indian Evidence Act. "however, it seems that accused Nos. 2 and 4 made certain correspondence with the complainant and they have also signed with accused No. 1. However, it cannot be said that they were acting as a Director of accused No. 1 at that time. To attract the liability under section 138 of the Act, I am of the view that those persons must be Directors of the Company so as to fasten the liability against them under section 141 of N. I. Act. Admittedly, in this case accused No. 1 M/s Nagpur Detergent Pvt. Ltd. is a company incorporated under the provisions of the Companies Act, 1956 and, therefore, if any offence is committed by company, all its Directors are responsible under section 141 of N. I. Act. Therefore, I am of the view that as the cheque was signed by accused No. 2 M. A. Bharati in a capacity as a Director of accused No. 1 he is only person liable along with accused No. 1 for the offence under section 138 r/w 141 of N. I. Act. ( 9 ) THE learned Metropolitan Magistrate held that the original accused Nos. 3 and 4 were the Directors of accused No. 1 company, and though there wee specific averments in the complaint that accused Nos. 3 and 4 were responsible for the day to day affairs of the company, that was not sufficient to fasten them with the liability for the offence punishable under section 138 read with section 141 of the Act. 3 and 4 were responsible for the day to day affairs of the company, that was not sufficient to fasten them with the liability for the offence punishable under section 138 read with section 141 of the Act. ( 10 ) IN the backdrop of this factual position, it is obvious that by no stretch of imagination it could be said that prima facie offence under section 500 of indian Penal Code has been made out. It appears that the subsequent prosecution launched by respondent No. 1 is only with a view to give counter blast to the prosecution launched against them and other persons who are the Directors of the company. It is obvious that if the averments made in the criminal prosecution launched by the applicant are taken into consideration, by no stretch of imagination it could be said that prima facie there was any reason for the respondent No. 1 to file criminal prosecution for the offence punishable under section 500 of Indian Penal Code and that too one at Nagpur and the other at Darwha Court. It appears that the learned Metropolitan Magistrate has issued process under section 138 of the act only and it follows that the issue of process under section 420 of Indian penal Code was dropped as is clear from the order of discharge dated 22-1- 2003. In such a situation, it is not possible to accept that there is a material to show that the applicant had made any imputation concerning the respondent no. 1 intending to harm or knowing or having reason to believe that such imputation will harm the reputation of those persons within the meaning of section 499 of Indian Penal Code. ( 11 ) THE learned Counsel for the applicant rightly relied on the decision in rajappa v. Mahadeo, 2000 (6) S. C. C. 120, cited supra, wherein ratio has been laid down that the Court must take serious note of unscrupulous litigants who adopt dubious methods, including filing of fraudulent litigation, to defeat orders of courts and pass appropriate orders and issue necessary directions. In the present case, the criminal prosecution launched by respondent No. 1 appears to be adoption of dubious method especially when it is not in dispute that even the accused Nos. In the present case, the criminal prosecution launched by respondent No. 1 appears to be adoption of dubious method especially when it is not in dispute that even the accused Nos. 3 and 4 who are discharged from the criminal prosecution launched at Bombay had entered into some correspondence with the applicant so far business dealings are concerned. ( 12 ) IN view of the aforesaid state of affairs, this Court does not think it necessary to examine the question of limitation. Consequently, this Court is of the considered opinion that continuation of the criminal prosecution against the applicant would be an abuse of process of Court and, therefore, the direction of the learned Magistrate regarding issue of process is liable to be set aside. Accordingly, both the applications are allowed and the impugned order directing issue of process is set aside and the criminal prosecution in Criminal complaint case No 391 of 2000 pending on the file of learned Magistrate at Nagpur and Criminal Complaint case No. 664 of 2000 pending on the file of the Magistrate at Darwha are hereby quashed. The Metropolitan Magistrate would decide those criminal cases filed by the applicants on merits in accordance with law. It is made clear that this Court should not be taken to have expressed any opinion on the merits of the criminal prosecution launched by the applicant at Bombay order accordingly.