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2017 (10) TMI 978 - HC - Indian LawsProceedings in the criminal complaint - complaint through authorized representatives - offence under NI Act - Offences by Companies - Held that - The complaint was filed through the authorized representative of the respondent no.1 Shri Girish Joshi. His authorization is supported by the resolution passed by the complainant company. The complaint also specifically mentions that the representative has personal knowledge in respect of the facts of the case as well as on the basis of record with complainant company. The verification statement also mentions that Shri Joshi has been appointed by the complainant company by passing Board Resolution, authorizing him to file complaint and lead evidence against the accused as he knows the facts of the case. In view of the above, there is no infirmity in the filing of the complaint of Shri Girish Joshi as authorized representative of respondent no.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. It is crystal clear that if the person who commits an offence under Section 138 of the Act is a company the company as well as other person in charge of or responsible to the company for the conduct of business of company at the time of commission of offence is deemed to be guilty of the offence. It creates constructive liability on the person responsible for the conduct of business of the company. In the light of the aforesaid observations, it will have to be seen that the applicant is one of the person whose is concerned with the day to day affairs of the company. As stated in complaint the applicant is looking after day to day affairs of accused no.1. He has dealt with complainant company in respect of subject transaction. He has acted in connivance with other in dishonour of cheque. The complainant must be given an opportunity to prove the same by leading the evidence before the trial Court. The proceedings cannot be quashed at the threshold. No reason to interfere in the order issuing process passed by the trial Court. As perused the reply filed by the advocate for the complainant and the documents in the form of E-mail being relied upon by the complainant. According to the respondent no.1 the E-mails were exchanged between the parties which shows the complicity of the applicant in the subject transaction. The said E-mails and its veracity has to be tested in evidence during the course of trial. Prima facie case is made out showing involvement/participation of the applicant in the said transaction. It is pertinent to note that the applicant has annexed some of the E-mails and the copy of consent terms to the application. According to the complainant, applicant is responsible for dishonour of about 27 cheques and several complaints have been filed by the respondent no.1 in which the applicant is accused and he did not appear before the trial Court, and, hence proclamation has been issued against him declaring him as absconding. In the light of the aforesaid observations, no finding that the applicant has made out any case for quashing the proceedings by invoking the inherent powers under Section 482 of the Code of Criminal Procedure, and, hence, the petition deserves to be dismissed.
Issues Involved:
1. Incorrect facts in the complaint. 2. Mechanical issuance of process by the trial court. 3. Contradictory versions regarding the applicant's role. 4. Non-compliance with Section 202 of Cr.P.C. 5. Vicarious liability under Section 138 read with Section 141 of the Negotiable Instruments Act. 6. Maintainability of the complaint filed by an authorized representative. 7. Involvement of the applicant in the transaction. 8. Admissibility of electronic evidence (E-mails). Detailed Analysis: 1. Incorrect Facts in the Complaint: The applicant contended that the complaint incorrectly identified him as the CFO and signatory of the company, asserting that he has no connection with the accused company. He argued that the trial court issued the process based on these incorrect facts. 2. Mechanical Issuance of Process by the Trial Court: The applicant argued that the trial court mechanically issued the process without proper application of mind. The process was issued based on the statement of the company's authorized representative, who lacked personal knowledge of the facts and could not specify the role of the accused. 3. Contradictory Versions Regarding the Applicant's Role: The applicant pointed out contradictions in the complaint, notice, and verification statement regarding his role. The complaint referred to him as the CFO, while the notice and verification statement mentioned him as the signatory to the cheque. The applicant argued that these contradictions indicate that the complainant is unsure about his role. 4. Non-compliance with Section 202 of Cr.P.C.: The applicant argued that the trial court did not follow the provisions of Section 202 of Cr.P.C. in the proper perspective. He contended that the inquiry under Section 202 was not conducted with the intent and object of the provisions, and there was no application of mind by the trial court. 5. Vicarious Liability under Section 138 read with Section 141 of the Negotiable Instruments Act: The applicant argued that he does not fall under any category enumerated under Section 138 read with Section 141 of the Negotiable Instruments Act. He contended that there were no requisite averments in the complaint to invoke vicarious liability against him, holding him responsible for the liability of the accused company. 6. Maintainability of the Complaint Filed by an Authorized Representative: The applicant argued that the complaint filed by Shri Girish Joshi, the authorized representative of the complainant company, was not maintainable in law. He contended that Joshi had no knowledge of the transactions and was unable to specify the role of the accused. 7. Involvement of the Applicant in the Transaction: The respondent argued that the applicant was involved in the transaction and acted in connivance with other accused. The respondent relied on several E-mails exchanged between the parties, which allegedly showed the applicant's involvement in the transaction. 8. Admissibility of Electronic Evidence (E-mails): The applicant argued that the E-mails relied upon by the complainant could not be considered in view of Section 65B of the Indian Evidence Act, 1872. He contended that the stage to appreciate the evidence was yet to come, and the trial court was required to apply its mind while issuing the process. Judgment: The court dismissed the applicant's contentions and upheld the issuance of the process by the trial court. The court found that the complaint was filed through the authorized representative of the complainant company, who had personal knowledge of the facts and was authorized by a resolution passed by the company. The court also held that the trial court had invoked Section 202 of Cr.P.C. and conducted an inquiry before issuing the process. The court observed that the complaint attributed a role to the applicant, stating that he was looking after the day-to-day affairs of the accused company and had dealt with the complainant company in respect of the subject transaction. The court noted that there were sufficient averments to invoke Section 141 of the Negotiable Instruments Act against the applicant. Regarding the admissibility of electronic evidence, the court held that the stage to appreciate the evidence was yet to come, and the trial court was required to apply its mind while issuing the process. The court found that the E-mails relied upon by the complainant showed the applicant's involvement in the transaction, and the veracity of the E-mails had to be tested in evidence during the trial. The court concluded that the applicant had not made out any case for quashing the proceedings by invoking the inherent powers under Section 482 of Cr.P.C. and dismissed the application. The court clarified that the observations made in the order were for considering the present application and that the trial court should not be influenced by these observations during the trial.
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