9911796707
TMI Blog2008 (12) TMI 822X X X X Extracts X X X X X X X X Extracts X X X X ..... to filing of these two petitions are more or less identical. Therefore, a reference is made to the facts of the case in Criminal Writ Petition No. 1444 of 2008. The first respondent filed a private complaint against the petitioners and four others alleging commission of an offence under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the said Act ). The complaint is based on eight cheques issued by M/s. Premier Explochem Limited (the first accused) in favour of the first respondent in discharge of the alleged liability of the said M/s. Premier Explochem Limited (hereinafter referred to as the said Company ). The petitioners have been arranged as fifth and sixth accused in the said complaint. As stated earlier, the first accused is the said company. The case of the first respondent made out in the complaint is that the petitioners along with second to fourth accused are the Directors of the said company. The fifth accused (the first petitioner) is alleged to be the Chairman of the said company. It is stated that second and third accused are the Directors of the said company and also signatories to the cheques subject matter of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irst respondent recorded by the learned Magistrate. He submitted that on plain reading of the averments made in the complaint the process could not have been issued against the petitioners as material averments in terms of Section 141 of the said Act have not been made in the complaint. Reliance was placed on a decision of the Apex Court in the case of S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla and Anr. 2005CriLJ4140 . The learned Senior Counsel appearing for the petitioners also relied upon the decision of the Apex Court in the case of Sabitha Ramamurthy and Anr. v. R.B.S. Channabasavaradhya 2006CriLJ4602 . He submitted that in view of the mandate of Section 200 of the said Code, the first respondent-complainant was bound to make statements on oath as to how the offence has been committed and how the petitioners and other accused are responsible therefore. He also relied upon a decision of this Court in the case of Kapal Mehra v. Indusind Enterprises and Finance Ltd. 2008(2)BomCR359 and submitted that the persons sought to be made criminally liable under Section 141 must be in-charge of and responsible for the conduct of the business of the accused company. Inviting my attention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tement as the reply forwarded by the petitioners on 16th August 2007 was not received before the complaint was filed and, therefore, there was no reference to the said reply of both the petitioners in the complaint as well as in the verification statement. He submitted that the material ]averments in terms of Section 141 of the said Act have been made in the complaint. He submitted that the Income Tax Returns of the said company of the relevant years have been signed by the first petitioner in his capacity as the Chairman of the said company. 12. He submitted that the learned Magistrates in the city of Mumbai who are dealing with the complaints under Section 138 of the said Act have been following a practice of recording the verification statement of the complainants in complaints under Section 138 of the said Act in a particular format. In fact, he has placed on record verification statements recorded by different Magistrates in the city in particular formats. His submission is that if the learned Magistrate has not recorded a detailed verification statement of the authorised representative of the first respondent though the said representative was willing to make a detailed st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out, the process ought to have been issued under Section 138 read with Section 141 of the said Act. For dealing with this submission, a reference will have to be made to Sections 138 and 141 of the said Act. The Section 138 introduces a legal fiction which provides that in case of dishonor of a cheque in the situations provided for in the Section, the drawer of the cheque shall be deemed to have committed an defense. The said Section provides for a punishment for the said offence. Section 141 of the1 said 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 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 furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... main submissions have been made on the verification statement of one Shyam Manglunia which is annexed at page 32 of the petition. The said statement contains numbered paragraphs having titles such as the cheque number, the cheque date, the cheque amount, the name of the drawer's bank, the name of the drawee's bank, the date of presentation of the cheque, the date of receiving the intimation from the bank of dishonour of the cheque, the date of notice of demand, the date of service of notice to the drawer, the date of receipt of reply if any of the drawer and the date of filing the complaint. In the verification statement necessary particulars have been filled in against the item numbers referred to above. Thus, the verification statement recorded in these two cases is in a pre-conceived format in which necessary particulars referred to above are filled in. 18. Before dealing with the effect of such a verification statement, it will be necessary to consider the object of the statement under Section 200. Section 200 of the said Code reads thus: Section 200. Examination of complainant.- A Magistrate taking cognizance of an offence on complaint shall examine upon oath ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court to ensure that what is stated in the complaint is also stated by the complainant on oath and it is only then that based on such statement that process can be issued. The corollary of this would be that unless offences are disclosed from the statement on oath, no process can be issued only based on averments in the complaint. The complainant is bound to make a statement on oath as to how the offence was committed and how the accused persons are responsible therefore. After the statement on oath is recorded, a Magistrate is required to apply his judicial mind to the facts of the case and the law applicable thereto and find out what of-fence/s is made out, notwithstanding that the other party at that stage is unrepresented. As observed by the Apex Court time and again, summoning of an accused in a criminal case is a serious matter and criminal law cannot be set into motion as a matter of course. A Magistrate is required to examine the nature of the allegations made in the complaint and the evidence both oral and documentary to see if it is sufficient for the complainant to succeed in bringing charge home to the accused. In other words, the examination of the complainant on oath ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... formality. Before a Division Bench of this Court in the case of Maharaja Developers and Anr. v. Udaysingh Pratapsinghrao Bhosale and Anr. an issue arose whether in the light of non obstante Clause in Sections 142 and 145 of the said Act is it mandatory for the Magistrate before issue of process to examine the complainant in a complaint alleging an offence under Section 138 of who has filed the complaint with affirmation as regards truthfulness of the facts mentioned in the complaint. One of the submissions made before the Division Bench was that if the complaint alleging offence under Section 138 is affirmed by the complainant reiterating the truthfulness of the averments made therein, there may not be any requirement of recording a statement under Section 200 of the said Code. The Division Bench held that the Magistrate is obliged and duty bound to examine upon oath the complainant before issuance of process though there is a solemn affirmation at the foot of the complaint by the complainant. 22. On plain, reading of Section 200 of the said Code it, appears that It is the obligation of the Magistrate to examine the complainant which means that the learned Magistrate is obliged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment is mechanically recorded in a format, it is obvious that a complainant will be deprived of an opportunity to disclose the material particulars of factual aspects on oath. 24. When this petition was heard on 21st August 2008 the learned Counsel appearing for the first respondent stated that many learned Magistrates in the city of Mumbai dealing with complaints under Section 138 of the said Act are recording verification statements only in a pre-conceived format. For the perusal of the Court the learned Counsel appearing for the first respondent has placed on record true copies of verification statements recorded by different Metropolitan Magistrates in the city of Mumbai in complaints under Section 138 of the said Act. Perusal of the copies of the said statements supports the factual statement made by the learned counsel. The learned Magistrate has to perform his duty under Section 200 of the said Code by putting questions to the complainant so that the complainant can state before the Court as to how the accused named in the complaint are liable. 25. Thus, in the present case, the learned Magistrate has not performed his duty under Section 200 of the said Code. The compl ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
