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2017 DIGILAW 355 (KER)

Shahanamol Mehrunniza v. Kunjumon

2017-02-20

ALEXANDER THOMAS

body2017
ORDER : Alexander Thomas, J. 1. The petitioner in Crl. M. C. No. 1548 of 2016 is accused No. 3 in C. C. No. 513 of 2015 on the file of the Judicial First Class Magistrate Court (N.I. Act Cases), Kochi, for the offence punishable under Section 138 of the Negotiable Instruments Act, instituted on the basis of a complaint filed by the first respondent herein. 2. The gist of the allegation in the complaint is that the first respondent herein, who is a local business man, has paid Rs.5,00,000/- to the petitioner (A3) and her husband (A2) on the assurance of providing directorship of the first accused Company. But, the first respondent was not given the directorship of the Company as ensured by the petitioner and her husband. It is stated in the complaint that the accused and her husband had made arrangements to return the said amount of Rs.5,00,000/- by the issuance of the cheque in question. The second accused (petitioner's husband) is the Managing Director of the first accused Company who has signed and issued the cheque in question and that the third accused (petitioner herein) is also responsible for the conduct of the day to day affairs of the business of the first accused Company. The cheque got dishonoured on presentation and the accused failed to repay the amount on demand. This resulted in the institution of C. C. No. 513 of 2015, on which the learned Magistrate had taken cognizance for the offence punishable under Section 138 of the Negotiable Instruments Act and had issued summons to all the three accused therein. 3. Annexure A2 dated 01/10/2013 is stated to be the letter of resignation given i the petitioner resigning as Director of the Company and that by Annexure A5 resolution: a dated 01/10/2013, the Board of Directors of the first accused Company had accepted the resignation of the petitioner as the Director of the Company. Annexure A6 statement of profit and loss account of the Company for the financial year 2013-2014 would show that the said document was signed only by the other Directors and not by the petitioner. Further that Annexure A7 balance sheet of the Company for the year 2013-2014 would also show that the petitioner is not a Director of the Company. Annexure A6 statement of profit and loss account of the Company for the financial year 2013-2014 would show that the said document was signed only by the other Directors and not by the petitioner. Further that Annexure A7 balance sheet of the Company for the year 2013-2014 would also show that the petitioner is not a Director of the Company. It is stated by the learned counsel for the petitioner that the fact regarding the resignation of the petitioner on 01/10/2013 was duly intimated to the Registrar of Companies, Kerala. It is accordingly submitted that even as per the averments in Annexure Al complaint, the date of issuance of the dishonoured cheque is 20/12/2014 and that the petitioner had resigned from the directorship of the Company much prior to that and as early as on 01/10/2013. Accordingly, it is contended that the petitioner cannot be mulcted with the corporate vicarious liability as envisaged in Section 141 of the Negotiable Instruments Act in as much as she had resigned from the directorship of the Company as early as on 01/10/2013, which is much prior to the date of issuance of the cheque in question. The petitioner would also place reliance on Annexure A3 which is stated to be the website materials issued by the Ministry of Corporate Affairs to contend that she had demitted the office as Director of the Company with effect from 01/10/2013. 4. The petitioner places reliance on the judgment of the Apex Court in Pooja Ravinder Devidasani v. State of Maharashtra and another reported in 2014 (16) SCC 1 : AIR 2015 SC 675 : 2014 ICO 1963 herein it is held that where the accused is not a Director or in charge of the day to day affairs of a Company at the time of commission of the alleged offence or where the accused had resigned from the Board of Directors of the Company much before the issuance of cheque, then the continuation of the impugned criminal proceedings under Sections 138 and 141 of the Negotiable Instruments Act will amount to abuse of the process of law. 5. In Crl. M. C. No. 1558 of 2016, the petitioner therein is the same as the one involved in Crl. M. C. No. 1548 of 2016. The facts in Crl. M. C. No. 1558 of 2016 are also broadly similar to the one in Crl. 5. In Crl. M. C. No. 1558 of 2016, the petitioner therein is the same as the one involved in Crl. M. C. No. 1548 of 2016. The facts in Crl. M. C. No. 1558 of 2016 are also broadly similar to the one in Crl. M. C. No. 1548 of 2016. The only difference is that the complainant (first respondent) in these two cases are different persons. The allegation of the complaint is also broadly similar. The date of issuance of the cheque is on 15/12/2014. The petitioner relies on the very same documents as the one in Crl. M. C. No. 1548 of 2016. 6. The Registrar of Companies, Kerala, who is stated to have been issued Annexure A3, was impleaded as additional respondent in these cases. The Central Government Standing Counsel takes notice for the said additional respondent. The ROC was directed to swear to an affidavit before this Court stating as to whether any resignation letter of the petitioner has been duly forwarded to that office and if so, state whether the records of the ROC would reveal that the petitioner had resigned from the directorship with effect from 01/10/2013 and also regarding correctness of the details shown in Annexure A3 and Annexure A4 website details. It was also directed that the said affidavit of the ROC should also state the procedure that is to be followed by the ROC in receiving the resignation letters of the Directors of the Company and whether the retrospective resignation is also permitted by the ROC. 7. The additional respondent ROC, Kerala, has filed separate affidavits dated 30/01/2017 in both these cases. In paragraph 10 of the said affidavit, it is stated that Annexure A3 document, viz., DIR-12 form has been filed by the Company in question before the office of the Registrar of Companies, Kerala, Ernakulam, only on 12/05/2015. The said document shows that the petitioner herein had ceased to be a Director of the Company with effect from 01/10/2013 due to resignation. It is also stated in paragraph 5 of the said affidavit that no liability has been prescribed as the provisions of the Act for the resigning Director to intimate the Registrar of Companies about resignation. 8. The said document shows that the petitioner herein had ceased to be a Director of the Company with effect from 01/10/2013 due to resignation. It is also stated in paragraph 5 of the said affidavit that no liability has been prescribed as the provisions of the Act for the resigning Director to intimate the Registrar of Companies about resignation. 8. The first respondent has filed counter affidavit in both these cases, wherein it is asserted that the petitioner herein had received the statutory notice dated 19/03/2015 issued by the complainant under Section 13 8 proviso (b) of the Negotiable Instruments Act, in the office address of the Company as evidenced from Annexure R1A. Further it is stated that the petitioner herein had not sent any reply notice to the said statutory notice contending that she had resigned from the directorship of the Company much before the issuance of the cheque. It is also stated that in Annexure RIB reply notice issued by accused Nos. 1 and 2, they have not raised any plea therein that accused No. 3 has demitted the office as Director much prior to the issuance of the cheque. 9. Heard Sri. Nobel Raju, learned counsel appearing for the petitioner/3rd accused, Sri. Ashik K. Mohammed Ali, learned counsel appearing for Rl/complainant and Sri. Suvin R. Menon, learned Central Government Counsel appearing for the additional respondent, ROC, Kerala. 10. It is well established by the judgment of the Apex Court as in Aneeta Hada v. Godfather Travels & Tours (P) Ltd. reported in 2012 (5) SCC 661 : 2012 (2) KLJ 456 : 2012 ICO 445 that the principal offender in such cases alleging offence under Section 138 of the Negotiable Instruments Act where the drawer of the cheque is a Company, would be the Company itself and that the Company is a necessary party in such criminal proceedings and that the Company as well as the Directors who are responsible for the day to day affairs of the Company would be liable to be prosecuted for such offence. It has also been held by the judgment of the Apex Court in S. M. S. Pharmaceuticals Ltd. v. Neeta Bhalla and another reported in 2005 (8) SCC 89 : 2005 ICO 595, that there should be sufficient averments in the complaint that the accused Directors was in charge of and was responsible to the Company for the conduct of business of the Company, as envisaged in Section 141 of the Negotiable Instruments Act. It has been held by the Apex Court in paragraphs (1) and (19) as follows: "1. This matter arises from a reference made by a two-Judge Bench of this Court for determination of the following questions by a larger Bench: (a) Whether for purposes of Section 141 of the Negotiable Instruments Act, 1881, it is sufficient if the substance of the allegation read as a whole fulfill the requirements of the said section and it is not necessary to specifically state in the complaint that the person accused was in charge of, or responsible for, the conduct of the business of the Company. (b) Whether a director of a Company would be deemed to be in charge of, and responsible to, the Company for conduct of the business of the Company and, therefore, deemed to be guilty of the offence unless he proves to the contrary. (c) Even if it is held that specific averments are necessary, whether in the absence of such averments the signatory of the cheque and or the managing directors or joint managing director who admittedly would be in charge of the Company and responsible to the Company for conduct of its business could be proceeded against." "19. In view of the above discussion, our answers to the questions posed in the reference are as under: (a) It is necessary to specifically aver in a complaint under Section 141 that at the time the offence was committed, the person accused was in charge of and responsible for the conduct of business of the Company. This averment is an essential requirement of Section 141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied. (b) The answer to the question posed in sub-para (b) has to be in the negative. This averment is an essential requirement of Section 141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied. (b) The answer to the question posed in sub-para (b) has to be in the negative. Merely being a Director of a Company is not sufficient to make the person liable under Section 141 of the Act. A director in a Company cannot be deemed to be in charge of and responsible to the Company for the conduct of its business. The requirement of Section 141 is that the person sought to be made liable should be in charge of and responsible for the conduct of the business of the Company at the relevant time. This has to be averred as a fact as there is no deemed liability of a director in such cases. (c) The answer to Question (c) has to be in the affirmative. The question notes that the managing director of joint managing director would be admittedly in charge of the Company and responsible to the Company for the conduct of its business. When that is so, holders of such positions in a Company become liable under Section 141 of the Act. By virtue of the office they hold as managing director or joint managing director, these persons are in charge of and responsible for the conduct of business of the Company. Therefore, they get covered under Section 141. So far as the signatory of a cheque which is dishonoured is concerned, he is clearly responsible for the incriminating act and will be covered under sub-section (2) of Section 141. " Section 141 of the Negotiable Instruments Act reads as follows: "141. Therefore, they get covered under Section 141. So far as the signatory of a cheque which is dishonoured is concerned, he is clearly responsible for the incriminating act and will be covered under sub-section (2) of Section 141. " Section 141 of the Negotiable Instruments Act reads as follows: "141. Offences by companies.— (1) If the person committing an offence under Section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence: [Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter.] (2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.— For the purposes of this section,— (a) "company" means any body corporate and includes a firm or other association of individuals; and (b) "director", in relation to a firm, means a partner in the firm." 11. Explanation.— For the purposes of this section,— (a) "company" means any body corporate and includes a firm or other association of individuals; and (b) "director", in relation to a firm, means a partner in the firm." 11. As already mentioned herein above, it has been held by the Apex Court in Pooja Ravinder Devidasani v. State of Maharashtra and another reported in 2014 (16) SCC 1 : AIR 2015 SC 675 : 2014 ICO 1963 that where the accused is not a Director or in charge of the day to day affairs of a Company at the time of commission of the alleged offence or where the accused has resigned from the Board of Directors of the Company much before the issuance of the cheque, then the continuation of the impugned proceedings under Sections 138 and 141 of the Negotiable Instruments Act will amount to abuse of process of Court. 12. In Sabitha Ramamurthi and another v. R. B. S. Channabasavaradhya reported in 2006 (10) SCC 581 : 2006 (4) KLT 1017 : 2006 ICO 5652, it was held by the Apex Court in paragraph 7 thereof as follows: "7………. it is not necessary for the complainant to specifically reproduce the wordings of the section but what is required is a clear statement of fact so as to enable the Court to arrive at a prima facie opinion that the accused are vicariously liable. Section 141 raises a legal fiction. By reason of the said provision, a person although is not personally liable for commission of such an offence would be vicariously liable therefore. Such vicarious liability can be inferred so far as a Company registered or incorporated under the Companies Act, 1956 is concerned only if the requisite statements, which are required to be averred in the complaint petition, are made so as to make the accused therein vicariously liable for the offence committed by the Company………… " 13. Such vicarious liability can be inferred so far as a Company registered or incorporated under the Companies Act, 1956 is concerned only if the requisite statements, which are required to be averred in the complaint petition, are made so as to make the accused therein vicariously liable for the offence committed by the Company………… " 13. In Gunmala Sales Private Ltd. v. Anu Mehta and Others reported in 2015 (1) SCC 103 : 2014 (1) KLT 389 : 2014 ICO 1294, it has been held by the Apex Court in paragraph 34.3 as follows: "34.3 In the facts of a given case, on an overall reading of the complaint, the High Court may, despite the presence of the basic averment, quash the complaint because of the absence of more particulars about the role of the director in the complaint. It may do so having come across some unimpeachable, incontrovertible evidence which is beyond suspicion or doubt or totally acceptable circumstances which may clearly indicate that the Director could not have been concerned with the issuance of cheques and asking him to stand the trial would be abuse of process of Court. Despite the presence of basic averment, it may come to a conclusion that no case is made out against the Director. Take for instance a case of a Director suffering from a terminal illness who was bedridden at the relevant time or a Director who had resigned long before issuance of cheques. In such cases, if the High Court is convinced that prosecuting such a Director is merely an arm-twisting tactics, the High Court may quash the proceedings. It bears repetition to state that to establish such case unimpeachable, incontrovertible evidence which is beyond suspicion or doubt or some totally acceptable circumstances will have to be brought to the notice of the High Court. Such cases may be few and far between but the possibility of such a case being there cannot be ruled out. In the absence of such evidence or circumstances, complaint cannot be quashed. " 14. Such cases may be few and far between but the possibility of such a case being there cannot be ruled out. In the absence of such evidence or circumstances, complaint cannot be quashed. " 14. It has been held in the judgment in Tamil Nadu Newsprint and Papers Ltd. v. D. Karunakar and others reported in 2016 (6) SCC 78 : 2015 (2) KLD 476 : 2015 ICO 1344 that merely because a person is acting as a Director of the Company will not by itself make him responsible for the cheque issued for and on behalf of the Company and the Director must be in charge and responsible for the conduct of the business of the Company and there has to be specific averment in the complaint that the person accused was in charge of the conduct of the business of the Company at the time of commission of the offence. However, it was held by the Apex Court that when there are specific averments in the complaint against the Director of the Company that he was in charge of and responsible for the conduct of the business of the Company at the time of issuance of the cheque in question, then it is not proper to exercise the extraordinary powers conferred under Section 482 of the Code of Criminal Procedure for considering the plea of quashment of the proceedings on such grounds. 15. In Suryalakshmi Cotton Mills Ltd. v. Rajvir Industries Ltd. and others reported in 2008 (13) SCC 678 : 2008 (1) KHC 337 : 2008 ICO 11906, it was held by the Apex Court in paragraph 17 thereof that though the power conferred under Section 482 of the Cr.P.C. is the wide amplitude, a great deal of caution is required in its exercise. It was also held by the Apex Court in paragraph 22 thereof that ordinarily a defence of an accused although it appears to be plausible, should not be taken into consideration for exercise of the said jurisdiction. But, the High Court at that stage would not ordinarily enter into a disputed question of fact. It was also held by the Apex Court in paragraph 22 thereof that ordinarily a defence of an accused although it appears to be plausible, should not be taken into consideration for exercise of the said jurisdiction. But, the High Court at that stage would not ordinarily enter into a disputed question of fact. But, that does not mean that documents of unimpeachable character should not be taken into consideration at any cost for the purpose of finding out as to whether the continuance of the criminal proceedings would amount to an abuse of the process or that the complaint petition is filed for causing mere harassment to the accused and that the criminal complaint has been filed only for the purpose of forcing the accused to pay the amount. It will be profitable to refer to paragraphs 17 and 22 of the judgments of the Apex Court in Suryalakshmi Cotton Mills Ltd. v. Rajvir Industries Ltd. and others reported in 2008 (13) SCC 678 : 2008 ICO 11906 , which reads as follows: "17. The parameters of jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the Code of Criminal Procedure is now well settled. Although it is of wide amplitude, a great deal of caution is also required in its exercise. What is required is application of the well-known legal principles involved in the matter. " "22. Ordinarily, a defence of an accused although appears to be plausible should not be taken into consideration for exercise of the said jurisdiction. Yet again, the High Court at that stage would not ordinarily enter into a disputed question of fact. It, however, does not mean that documents of unimpeachable character should not be taken into consideration at any cost for the purpose of finding out as to whether continuance of the criminal proceedings would amount to an abuse of process of Court or that the complaint petition is filed for causing mere harassment to the accused. While we are not oblivious of the fact that although a large number of disputes should ordinarily be determined only by the Civil Courts, but criminal cases are filed only for achieving the ultimate goal, namely, to force the accused to pay the amount due to the complainant immediately. While we are not oblivious of the fact that although a large number of disputes should ordinarily be determined only by the Civil Courts, but criminal cases are filed only for achieving the ultimate goal, namely, to force the accused to pay the amount due to the complainant immediately. The Courts on the one hand should not encourage such a practice; but, on the other, cannot also travel beyond its jurisdiction to interfere with the proceeding which is otherwise genuine. The Courts cannot also lose sight of the fact that in certain matters, both civil proceedings and criminal proceedings would be maintainable. " 16. Still further in Rallis India Ltd. v. Poduru Vidya Bhushan and others reported in 2011 (13) SCC 88 : 2011 (2) KLT 376 : 2011 ICO 489, the Apex Court held in paragraph 12 thereof that at the threshold, the High Court should not have interfered with the cognizance of the complaints having been taken by the Trial Court and the High Court could not have discharged the respondents of the said liability at the threshold and that unless parties are given opportunity to lead evidence, it is not possible to come to a definite conclusion as to what was the date when the earlier partnership was dissolved and since what date the respondents therein had ceased to be the partners of the firm. It will be profitable to refer to paragraph 12 of Rail is India Ltd. v. Poduru Vidya Bhushan and others reported in 2011 (13) SCC 88 : 2011 ICO 489 , which reads as follows: “12. At the threshold, the High Court should not have interfered with the cognizance of the complaints having been taken by the Trial Court. The High Court could not have discharged the respondents of the said liability at the threshold. Unless the parties are given opportunity to lead evidence, it is not possible to come to a definite conclusion as to what was the date when the earlier partnership was dissolved and since what date the respondents ceased to be the partners of the firm. " 17. Unless the parties are given opportunity to lead evidence, it is not possible to come to a definite conclusion as to what was the date when the earlier partnership was dissolved and since what date the respondents ceased to be the partners of the firm. " 17. Evaluating the facts of these cases in the light of the aforementioned legal principles, this Court is of the opinion that for considering the plea of quashment under Section 482 of the Cr.P.C, on the basis of the contention of the petitioner, that he/she was not in charge of and was not responsible for the affairs of the business of the Company at the time of issuance of the cheque in question, there should be some incontrovertible and unimpeachable materials of sterling quality to persuade this Court to consider such plea. It is for this reason that this Court had directed the impleadment of the Registrar of Companies, Kerala, as an additional respondent and had directed the said additional respondent to swear to affidavits dealing with the factual aspects on these points. If as a matter of fact, it had been revealed from the affidavits of the Registrar of Companies that not only the resignation was on a date prior to the date of issuance of the cheque, but that the same was duly forwarded to the Registrar of Companies immediately thereafter and much prior to the date of issuance of cheque, then this Court could have placed reliance on such objective factual aspects based on the affidavits of an independent statutory functionary like the Registrar of Companies, Kerala. The said affidavits filed by the additional respondent ROC, Kerala, would reveal that for the first time they got necessary intimation regarding the resignation only on 12/05/2015. Learned counsel appearing for the first respondent complainant would contend that for a Pvt. Ltd. Company, having only two or three Directors, it is very easy for them to fabricate documents showing resignation of a Director on an ante-dated basis and the Registrar of Companies has no role to ascertain as to when exactly the resignation had taken place or as to when exactly the Board of Directors of the Company had taken a decision thereon. This Court is not entering into these aspects, but since the only unimpeachable material of sterling quality that is now placed before this Court from an independent statutory functionary is that the intimation regarding the resignation of the petitioner as Director of the Company was given to the Registrar of Companies only on 12/05/2015 (which is after the date of issuance of the cheques dated 20/12/2014 and dated 15/12/2014), it is not proper for this Court to consider the plea of quashment under Section 482 of the Cr.P.C, so as to short-circuit the entire due process of the trial. However, this conclusion arrived at by the Court does not mean that the case set up by the petitioner that she had resigned from the Director of the Company much prior to the date of issuance of the cheque, is in any manner false or incorrect. However, it is also to be noted that in cases like the present one involving commission of offence under Section 138 of the Negotiable Instruments Act by a Company, then the burden of proof is on the complainant to prove beyond reasonable doubt before the Trial Court that the accused like the petitioner was in charge of and was responsible to the Company for the conduct of the business of the Company at the time of commission of the offence in question. Even if the Director has not resigned prior to the commission of the offence, still the complainant is obliged to prove beyond reasonable doubt that such a Director who is sought to be roped in for the corporate vicarious liability as envisaged in Section 141 of the Negotiable Instruments Act, was in charge of and was responsible to the Company for the conduct of the business of the Company, etc. Of course, the first proviso to Section 141 is a defence available to such an accused director. 18. A perusal of the documents produced in this case would show that most of the documents (except the one issued by the Registrar of Companies, Kerala) are those issued by the Company who is the principal offender in the complaint. The only information that is conveyed by an independent statutory functionary like the ROC would show that they were intimated about the factum of resignation only on 12/05/2015 that the petitioner had resigned from the directorship of the Company on 01/10/2013. 19. Sri. Suvin. The only information that is conveyed by an independent statutory functionary like the ROC would show that they were intimated about the factum of resignation only on 12/05/2015 that the petitioner had resigned from the directorship of the Company on 01/10/2013. 19. Sri. Suvin. R. Menon, learned Central Government counsel appearing for the ROC, would also appraise this Court that the ROC has no machinery to ascertain from Companies as to when exactly the resignation was actually taken place and when exactly was the date on which the Board had met to accept such resignation, etc. and that the only information that is to be mandatorily communicated to the ROC by the Company concerned is the form 32/DIR12 formal information regarding the resignation of a Director. Paragraph 13 of the affidavit dated 30/01/2017 filed by the respondent ROC reads as follows: "E-form DIR-12 filed by the Company can be treated only as a prima facie proof regarding the date of appointment or cessation of a Director of a Company. Veracity of the contents is a matter to be proved in evidence when it is disputed. " 20. Therefore, it is made clear that while it is the burden of proof of the complainant to prove beyond reasonable doubt about the fact that the person who is stated to be the Director was in charge of and was responsible for the affairs of the Company as envisaged in Section 141 of the Negotiable Instruments Act. An accused like the petitioner can certainly adduce necessary evidence to show that as a matter of fact, she had resigned from the office of the directorship of the Company much prior to the date of issuance of the cheque or equally such an accused will be at liberty to take defence under the umbrella of the first proviso to Section 141 of the Negotiable Instruments Act. 21. At this stage, Sri. Noble Raju, learned counsel appearing for the petitioner, would submit that this Court may pass necessary orders directing the learned Magistrate to grant exemption from personal appearance for the petitioner in the abovesaid trial, by taking recourse to the provisions contained in Section 205 of the Cr.P.C. Sri. Ashique K. Mohammadali, learned counsel appearing for Rl/complainant, does not have any serious objection to this course of action. Ashique K. Mohammadali, learned counsel appearing for Rl/complainant, does not have any serious objection to this course of action. In the light of this aspect, it is ordered that in case the petitioner moves appropriate application under Section 205 of the Cr.P.C. in both these cases, then the Magistrate should liberally consider such plea taking note of the fact that the complainant has no objection to the said prayer. However, the Magistrate will be at liberty to impose any conditions that the petitioner should appear on occasions where it is highly necessary and imperative in that regard. With these observations and directions, both the Crl. M. Cs. will stand finally disposed of.