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TMI Blog2018 (2) TMI 1265X X X X Extracts X X X X X X X X Extracts X X X X ..... be honoured on the due date and accordingly the complainant had accepted the same. So, accused nos. 2 to 8 are acting on behalf of accused no.1 Company and they are directly connected with the daytoday affairs of the Company. Therefore, they are liable for the prosecution as per the provisions of Section 141 of the Negotiable Instruments Act. It appears that if offence is committed by the Company, then every person who, at the time of offence was incharge and was responsible for the conduct of business of the Company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly - when all the Directors are connected with the business of the Company, it will make no difference if the cheque is issued by one or all the Directors, because the cheque was issued for and on behalf of the Company. It was also alleged that the learned Magistrate has issued process without complying with the mandatory provisions of Section 202 of the Criminal Procedure Code - Held that: - it appears that the object of Section 200 of the Criminal Procedure Code is to test whether the complainant makes out a sufficient ground for the purpose of issuin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the offence punishable under Section 138 of the Negotiable Instruments Act. The complainant alleged that he is an automobile engineer having experience of more than 22 years and was doing job as a Managerfleet at Abudhabi (UAE). Accused no.1 is a Registered Company. Accused no.4 is residing at Pune and having friendly relations with the complainant. Respondent no.4 was having knowledge about complainant's job at Abudhabi and his salary for more than ₹ 3.5 Lckh per month. 4. Complainant further alleged that thereafter accused no.4 met the complainant in the month of June, 2012. Thereafter accused no.4 informed the complainant that he and his 7 partners are developing the properties at Udaipur and Pune and are forming a Company. Thereafter accused nos. 2 to 8 impressed the complainant that they are already getting huge profit from their earlier investments. Therefore, the accused had requested the complainant to join them to develop company business and assured the complainant that they will pay Rs.Two Lakh fees per month minimum in addition to the profit percentage. 5. As per the assurance given by the accused, complainant, his wife and mother have invested an amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, relied upon the observations in the case of Aparna A.Shah vs Sheth Developers Pvt. Ltd. and Anr., reported in 2013 (4) Bom.C.R.879, particularly para nos. 22 and 23, which read thus : 22) In the light of the above discussion, we hold that under Section 138 of the Act, it is only the drawer of the cheque who can be prosecuted. In the case on hand, admittedly, the appellant is not a drawer of the cheque and she has not signed the same. A copy of the cheque was brought to our notice, though it contains name of the appellant and her husband, the fact remains that her husband alone put his signature. In addition to the same, a bare reading of the complaint as also the affidavit of examination-in-chief of the complainant and a bare look at the cheque would show that the appellant has not signed the cheque. 23) We also hold that under Section 138 of the N.I. Act, in case of issuance of cheque from joint accounts, a joint account holder cannot be prosecuted unless the cheque has been signed by each and every person who is a joint account holder. The said principle is an exception to Section 141 of the N.I. Act which would have no application in the case on hand. The p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 41 of the Negotiable Instruments Act reads thus : 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 subsection 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 subsection (1), where any offence under this Act has been committed by a company and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in 2013 (4) Bom.C.R. (C ri.) 286. 18. Before analyzing the contention raised by the learned counsel for the petitioners and referring to the judgment cited, it would be necessary to embark upon the provisions of Sections 200 and 202 of the Criminal Procedure Code. 200. Examination of complainant-A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate; Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses,- (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192; Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not reexamine them. 202. Postponement of issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the accused residing beyond his jurisdiction. 19. Learned counsel for the respondent has relied upon the observations in the case of Vijay Dhanuka vs Najima Mamtaj, reported in 2014 ALL MR (Cri.) 1924 (SC). The Apex Court, while considering the scope of Section has held that Section 202 of Criminal Procedure Code, inter alia, contemplates postponement of the issue of the process, in a case where the accused is residing at the place beyond the area in which he exercises his jurisdiction, and thereafter to either enquire into the case by himself or direct an investigation to be made by the police officer or by such other person as he thinks fit. The Apex Court has held that the amendment of Section 202 of the Criminal Procedure Code was necessitated, as false complaints were filed against persons residing at far off places in order to harass them. Considering the purpose for which the amendment has been brought, the Apex Court held that an inquiry or the investigation, as the case may be, is mandatory before summons are issued against the accused living beyond the territorial jurisdiction of the Magistrate. 20. Learned counsel for the respondent has brought to my notice t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... J. 282, this Court has taken a similar view and concurred with the judgment in the case of Bansilal S. Kabra (supra). 22. Learned counsel for the respondent has pointed out the observations in the case of Vimal Powerloom vs Ravi Agency and Anr., reported in 2015 Bom.C.R. (Cri.) 475, wherein the Coordinate Bench of this Court (Nalawade T.V.,J.) observed as follows : The various decisions rendered by this Court show that this court has held that the provisions of Section 202 as amended is mandatory in nature. Thus the courts are following the amended provisions in the State. In the case of Oman Bank cited supra, it is laid down that it is mandatory provision and procedure needs to be followed by JMFC. In view of this position of law, this court holds that the order of issue process passed by the JMFC, without following the aforesaid procedure cannot sustain in law. The Magistrate needs to follow the procedure with only object, to ascertain the truth in the allegations made and only prima facie case is required to be made out. The scope of the enquiry under Section 202 of Cr.P.C. is very limited. It is also required to keep in mind the relevant provisions of N.I.Act like Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in (2010) 2 SCC (Cri.) 1, held that provisions of Sections 143, 144, 145 and 147 of the Act expressly depart and override the provisions of the Criminal Procedure Code and observed as follows : 20. It may be noted that the provisions of sections 143, 144, 145 and 147 expressly depart from and override the provisions of the Code of Criminal Procedure, the main body of adjective law for criminal trials. The provisions of section 146 similarly depart from the principles of the Indian Evidence Act. Section 143 makes it possible for the complaints under section 138 of the Act to be tried in the summary manner, except, of course, for the relatively small number of cases where the Magistrate feels that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily. 29. So looking to the observations of the Apex Court in the case cited supra, it appears that the provisions of Section 143 to 145 and 147 of the Negotiable Instruments Act expressly depart and override the provisions of the Criminal Procedure Code. Therefore, the observations in the case o ..... 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