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2006 DIGILAW 1097 (BOM)

Shekhar Suman v. Narender

2006-07-17

S.K.MITTAL

body2006
JUDGMENT:- This order shall dispose of Crl. Misc. No.1796-M, 1799-M, 1802-M, 1805-M and, 1808-M of 2005, filed by petitioner Shekhar Suman, under Section 482 of the Code of Criminal Procedure for quashing of five different complaints filed under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act'), pertaining to five different cheques, and the summoning orders dated 15.9.2004, passed by Chief Judicial Magistrate, Karnal, in those complaints, qua him. In all the five cases, allegations are almost the same, except the amount of the cheques. The facts are being taken from Crl. Misc. No. 1796M of 2005. I the complaint respondent Narender alleged that M/s. Growell Multi Trade India Limited (hereinafter referred to as 'the accused Company'), which was engaged in the business of multi level marketing (arrayed as accused No.1 in the complaint) issued the cheque in order to discharge his liability of the commission income. The cheque was signed by the Managing Director of the Company (arrayed as accused No.3 in the complaint), but not by the petitioner (arrayed as accused No.2 in the complaint). The said cheque, on presentation, was dishonoured vide memo dated 12.6.2004 with remarks "payment stopped by drawer". After notice, the complainant filed the present complaint under Section 138 of the Act. It is alleged that the petitioner is the Chairman of the accused Company. In the complaint, four persons have been arrayed as accused, 'the Company' as accused No.1, Petitioner as accused No.2, the Managing Director and one of the Directors as accused Nos.3 and 4, respectively. After recording the statement of the complainant on affidavit as preliminary evidence, Chief Judicial Magistrate, Karnal has summoned all the four accused; 2. The petitioner is seeking quashing of the complaint as well as the summoning order passed there in qua him, by stating that he has been unnecessarily arrayed as an accused, whereas he has nothing to do with the affairs of the Company. He is neither a share holder, nor a Director nor the Managing Director nor the Chairman. He has never signed any cheque for or on behalf of the accused Company. He is neither a share holder, nor a Director nor the Managing Director nor the Chairman. He has never signed any cheque for or on behalf of the accused Company. It has been further stated that except the vague averments in the complaint that accused Nos.2 to 4 are liable for all acts and liabilities of the accused company being incharge of and responsible to the conduct of the business of the said Company, there is no other cogent material placed on record by the respondent, which prima facie show that the petitioner was in-charge of and responsible to the accused Company for the conduct of its business. The petitioner has placed on record, the Memorandum of Association and Article of Association of the accused Company as Annexure P-3. According to these documents, Accused Nos.3 and 5 and the other persons are the Managing Director and Directors of the Company. The name of petitioner does not figure anywhere. The petitioner has also placed on record copy of Form No.32 as Annexure P4, in which the intimation regarding the changes in the management of the accused Company was sent to the Company Law Board. In the said document also, name of the petitioner does not figure anywhere. The petitioner states that he is a T.V. and film actor. He was engaged as a Brand Ambassador by the accused Company to promote its products. In this regard, a Memorandum of Understanding was signed on 7.1.2004. Clause 6 of this memorandum clearly states that "the company is providing its business concept, brand name on its own risk and will be fully responsible for any dispute related to the same. In no way or not matter "Mr. Shekhar Suman" will be responsible for any legal or illegal action related to brand name, business concept or designs provided by the company." It has been stated that at present. the petitioner is not the Brand Ambassador of the Company. According to the petitioner, these Shekhar Suman facts clearly establish that he has nothing to do with the affairs of the Company. He is neither in-charge of nor responsible to the Company for the conduct of its business. He cannot be in any manner held liable for the alleged bouncing of the cheque. According to the petitioner, these Shekhar Suman facts clearly establish that he has nothing to do with the affairs of the Company. He is neither in-charge of nor responsible to the Company for the conduct of its business. He cannot be in any manner held liable for the alleged bouncing of the cheque. He has been falsely implicated in the complaint only on the ground that at one point of time, he was a Brand Ambassador of the accused company, though he had nothing to do with the conduct of its business. 3. In spite of the opportunity granted to the respondent, his Counsel submitted that the respondent does not want to file reply to the averments made in the petition and he choose to argue the matter without filing reply. 4. Learned Counsel for the petitioner submitted that except the vague averments made in the complaint that the petitioner is the Chairman of the accused company, there was and is no material against the petitioner to show that at the time of committing the alleged offence by the accused company, the petitioner was in-charge of or responsible to the Company for the conduct of its business. He further submitted that the Managing Director of the Company and another Director who signed the cheque and who were in-charge of or responsible to the Company for the conduct of its business have been arrayed as accused, but the petitioner, who has no concern with the affairs and conduct of the business of the accused Company, has been falsely implicated by the complainant without any basis and foundation. Therefore, the petitioner is not liable vicariously for the alleged offence committed by the accused company under Section 141 (12) of the Act. Learned Counsel submitted that in view of these facts, continuation for the criminal proceedings against the petitioner will be an abuse of the process of the Court and law, therefore, the complaint as well as the summoning order qua the petitioner are liable to be quashed in exercise of the inherent power of this Court under Section 482, Cr.P.C. Learned Counsel further submitted that in view of the decision of the Supreme Court in Adalat Prasad Vs. Rooplal Jindal and others, (2004)7 SCC 338 : [2004 ALL MR (Cri) 3131 (S.C.)], the petitioner has no other remedy except to file the instant petition for quashing of the complaint as well as the summoning order. While referring to the decision of the Supreme Court in Pepsi Foods Ltd. and another Vs. Special Judicial Magistrate and others, (1998)5 SCC 749 : [1998 ALL MR (Cri) 144 (S.C.)]. Learned Counsel submitted that where in the facts and circumstances of the case, continuation of the criminal proceedings is found to be an abuse of the process of law and when the complaint does not make out any case against the accused and still he must undergo the agony of a criminal trial, this Court has ample power to quash the complaint and the summoning order. Learned Counsel submitted that the averments made in the complaint against the petitioner for the alleged offence are not sufficient at all and the Magistrate, without applying his mind carefully to the facts stated in the complaint and the preliminary evidence, mechanically summoned the petitioner without there being any prima facie material against him. Learned Counsel contended that the petitioner is a T.V. and film actor and he has been falsely implicated in this complaint, though he has nothing to do with the affairs and conduct of the business of the company and if the complaint qua him is not quashed, he will be unnecessarily harassed and will have to face the criminal proceedings without there being any incriminating material against him. Thus, in the interest of justice and to prevent needless harassment to the petitioner, the complaint and the summoning order qua him are liable to be dismissed. 5. Learned Counsel for the respondent though did not controvert the various documents annexed with the petition and has not prima facie shown any material in support of the averments made by the complainant in the complaint that the petitioner is the Chairman of the accused company and as in-charge of and responsible to the said Company for the conduct of its business, but submitted that the questions as to whether the petitioner was the Chairman of the accused Company or not; and whether he was a person in-charge of and responsible to the Company for the conduct of its business or not are to be adjudicated at the time of the trial. He further submitted that the mere averments made in the complaint in this regard are sufficient for summoning of the petitioner as accused. He submitted that whether the allegations are correct or not or are sufficient or not can only be looked into while adjudication, learned Counsel relied upon a decision of the Supreme Court in S. V. Muzumdar and others Vs. Gujarat State Fertilizer Co. Ltd., AIR 2005 SC 2436 : [2005 ALL MR (Cri) 1581 (S.c.)]. 6. After hearing learned Counsel for the parties, for the reasons stated below, I am of the opinion that the complaint and the summoning order qua the petitioner are liable to be quashed. 7. In Pepsi Foods Ltd.'s case [1998 ALL MR (Cri) 144 (S.C.)] (supra), the Supreme Court has observed as under: "28. Summoning on an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if an offence is prima facie committed by all or any of the accused." In Punjab National Bank and others Vs. Surendra Prasad Sinha, 1993 Supp. (1) SCC 499. the Supreme Court has made the following observations: "6. It is also salutary to note that judicial process should not be an instrument of oppression or needless harassment. The complaint was laid impleading the Chairman. the Managing Director of the Bank by name and a host of officers. Surendra Prasad Sinha, 1993 Supp. (1) SCC 499. the Supreme Court has made the following observations: "6. It is also salutary to note that judicial process should not be an instrument of oppression or needless harassment. The complaint was laid impleading the Chairman. the Managing Director of the Bank by name and a host of officers. There lies responsibility and duty on the Magistracy to find whether the concerned accused should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or creates offence against the juristic person or the persons impleaded then only process would be issued. At that stage the Court would be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complaint as vendetta to harass the persons needlessly. Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not. be the means to wreak personal vengeance. Considered from any angle we find that the respondent had abused the process and laid complaint against all the appellants without any prima facie case to harass them for vendetta. " It is well settled that this court has ample inherent power under Section 482, Cr.P.c. to prevent the abuse of the process of law by the inferior Courts and to see that the stream of administration of justice remains clean and pure. No doubt. the Magistrate can discharge the Shekhar Suman accused at any stage of the trial, ifhe considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under Section 482, Cr.P.c. for quashing the proceedings against him, when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial. In view of the decision in Adalat Prasad's case [2004 ALL MR (Cri) 3131 (S.C.)] (supra), now the Magistrate cannot review his order on an application filed by the summoned accused. In view of the decision in Adalat Prasad's case [2004 ALL MR (Cri) 3131 (S.C.)] (supra), now the Magistrate cannot review his order on an application filed by the summoned accused. If the summoned accused wants to show that he has been unnecessarily summoned without there being any sufficient ground for proceeding against him, he has remedy to approach this Court under Section 482, Cr.P.c. and this Court has ample power to quash the proceedings, in case it comes to the conclusion that continuation of the proceedings in the Trial Court is an abuse of the process of the Court and the petitioner is being summoned unnecessarily without there being any cogent material against him. 8. In the light of the aforesaid principles, the facts of the present case clearly show that there is and was no material for summoning the petitioner for vicarious liability for the alleged offence committed by the accused Company. In the complaint only it has been alleged that the petitioner was the Chairman of the accused Company and accused Nos.3 and 4 were its Managing Director and Director. These persons were liable for all the acts being in-charge of and responsible to the Company for the conduct of its business. In his preliminary evidence, the complainant did not produce any document in support of the aforesaid averment indicating that the petitioner was the Chairman of the accused Company. Undisputedly, the petitioner has not signed or countersigned any of the disputed cheque which are alleged to have been issued by the accused Company in discharge of its liability of payment of commission. Except the averment and the statement made by the complainant on affidavit that the petitioner was the Chairman of the Company, there is no other material on the record. On the other hand, the authentic and unimpeachable documents placed on record by the petitioner before this Court, which in spite of the opportunity granted, have not been controverted by the respondent, clearly falsify the averments made by the complainant that the petitioner was the Chairman of the accused Company. At the time of arguments, learned Counsel for the respondent was asked to show any material to the effect that the petitioner ever remained as Chairman of the accused Company, but nothing could be shown. At the time of arguments, learned Counsel for the respondent was asked to show any material to the effect that the petitioner ever remained as Chairman of the accused Company, but nothing could be shown. However, Counsel for the respondent submitted that the question whether the petitioner was the Chairman or not and he was a person-in-charge of and responsible, to the Company for the conduct of its business will be seen at the time of trial. In my opinion, the facts and circumstances of this case, the averments and allegations made in the complaint against the petitioner and the stand taken by both the parties before this Court, do not prima facie prove the involvement of the petitioner in the alleged offence and he cannot be held, vicariously liable for the alleged offence committed by the accused Company. He has nothing to do with the conduct of the business of the Company. He cannot be said to be the person-in-charge of or responsible to the Company for the conduct of its business only on the basis of the fact that he remained as a Brand Ambassador of the Company. In the Memorandum of Understanding dated 7.1.2004, it was clearly stipulated that "the Company is providing its business concept, brand name on its own risk and will be fully responsible for any dispute related to the same. In no way or not matter" "Mr. Shekhar Suman" will be responsible for any legal or illegal action related to brand name, business concept or designs provided by the Company." The summoning of the petitioner for the alleged offence, in my opinion, is nothing but an abuse of the process of law and Court. 9. In view of the above discussion, all these five petitions are allowed and the five complaints bearing No.478 of 2004; Narender Vs. M/s. Growell Multi Trade India Limited and others, 474 of 2004; Arun Jain Vs. M/s. Growell Multi Trade India Limited and others, 475 of 2004; Malwa Furniture V s. M/s. Growell Multi Trade India Limited and others, 477 of 2004; Jyoti Associates Vs. M/s. Growell Multi Trade India Limited and others, and 476 of 2004; Sandeep Jain Vs. M/s. Growell Multi Trade India Limited and others, 474 of 2004; Arun Jain Vs. M/s. Growell Multi Trade India Limited and others, 475 of 2004; Malwa Furniture V s. M/s. Growell Multi Trade India Limited and others, 477 of 2004; Jyoti Associates Vs. M/s. Growell Multi Trade India Limited and others, and 476 of 2004; Sandeep Jain Vs. M/s. Growell Multi Trade India Limited and others, pending in the Court of Chief Judicial Magistrate, Karnal, as well as the summoning orders dated 15.9.2004, passed therein, and the consequently proceedings only qua the petitioner are hereby quashed in the interest of justice. Petition allowed.