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TMI Blog2007 (1) TMI 655X X X X Extracts X X X X X X X X Extracts X X X X ..... a compensation of Rs. 4 crores to the complainant society (Air Force Group Insurance Society) and in default the petitioner was required to further undergo three months simple imprisonment. The main grievance of the petitioner is that the petitioner has been convicted and sentenced in this case when, according to him, he was not a summoned accused and that he has suffered conviction and sentence in a trial in which, according to the petitioner, he was not even an accused. It was contended on behalf of the petitioner that this has resulted in gross miscarriage of justice. 2. Before the aforesaid grievance of the petitioner can be examined, it would be necessary to set out the sequence of events that have taken place in connection with this case. On 12.03.1999 a complaint was filed on behalf of the said society under Section 138 of the said Act. The complaint disclosed that, on the representation of the said company, the said society invested a sum of Rs. 2 crores for a period of 36 months through a draft dated 05.01.1996. It is alleged that the said company issued a cheque for Rs. 9.5 lakhs as well as a cheque for Rs. 1,14,521/- towards interest and a third cheque for a sum of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the complaint that the grievance of the society was not only against the said company and, initially against the accused No. 2 but also against the petitioner being the Chairman of the said company and allegedly being responsible for the day-to-day functioning of the said company. 5. By an order dated 30.05.2000 the accused were directed to be summoned for 09.05.2001. The notice/summons was consequently issued on 28.06.2000 for 09.05.2001. The same was issued to the said company through its Chairman Dilip S Dhanukar i.e., (the petitioner). The same was received as per the endorsement on the said notice, on 01.08.2000. An application under Section 319 of the Code of Criminal Procedure, 1973 was apparently moved by the complainant society on 11.04.2002 for specifically summoning the petitioner. It appears that no formal order was passed on that application. It must also be noted that the society decided to drop proceedings against Dr Tushar D Pimpale who was arrayed as accused No. 2 in the complaint filed by the society. By an order dated 08.11.2002, the proceedings against the said Dr Tushar D Pampale were dropped and proceedings were directed to continue only against accused No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... due to reason of "refer to drawer". Thereafter a legal notice dated 30.10.1999 was issued to you by registered post within the prescribed time and despite service of the same you failed to make the payment within the period of 15 days from the receipt of said notice and thereby committed an offence U/s. 138 of Negotiable Instrument Act which is within in my cognizance. I hereby direct you to be tried by this court for the said offence. Sd/ M.M./New Delhi 01.03.2004. (Underlining added). 7. Consequent upon the said notice, an order was passed on 01.03.2004 itself to the following effect: 01.03.2004 Present: AR of the complainant J. Singh with counsel for complainant. Accused No. 1's Director Dilip Dhanukar with counsel. From the material on record prima facie case U/S 138 Negotiable Instruments Act is made out against Accused No. 1. Notice U/S 251 Cr.P.C. framed, accordingly, to which the Director of Accused No. 1 pleads not guilty and claims trial. Further, Director of Accused No. 1 company has admitted being signatory of three cheques but has denied receiving of Legal Notice dated 30.01.1999. Put the matter for CE and complainant is permitted to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d company and that he was not the paid director of the company. He further stated that he was not running the day-to-day affairs of the company. According to him, there was a full time paid director Dr. Tushar D Pimpale for running the affairs of the company on day-to-day basis. 11. The Section 313 CrPC statement of the pet itioner clearly indicates that he was made aware of the totality of circumstances as also the role that was ascribed to him in the said offence. Significantly, the petitioner had earlier admitted that the three cheques in question had been signed by him. There was no denial of this fact in the said statement. The petitioner was aware of the allegations against him and specific to him as distinct from that against the said company. It is because of this awareness that the petitioner in the said statement specifically stated that he was neither in-charge of the said company nor was he running the day-to-day affairs of the company. It is, therefore, clear that the petitioner was aware that he could be convicted under Section 138 read with Section 141 of the said Act, in case, it was established that he was in-charge of the affairs of the company. 12. An examinati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the fact that he was also a signatory of the cheques in question, the petitioner would clearly be within the ambit of Section 141(2) of the said Act and that he could not be acquitted on this ground alone. 13. It was also urged before the learned Additional Sessions Judge, as it was urged before me, that the notice under Section 251 of the Code was not given to the petitioner. After examining the said notice under Section 251, the learned Additional Sessions Judge came to the conclusion that the notice was, in fact, given to the accused (petitioner) to which he pleaded not guilty. A reference to the said notice under Section 251 which has been set out in extenso earlier clearly indicates that the petitioner was also put to notice being the Chairman and Director of the said company and also having signed the said cheques. He was notified that he was in-charge and responsible for the day-to-day business of the said company. Therefore, the learned Additional Sessions Judge, in my view, correctly appreciated the factual position and came to the conclusion that the notice under Section 251 CrPC had reference to the petitioner also. The plea of the petitioner was rightly rejected. 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of cheque No. 552062 which was for the amount of Rs. 9.5 lacs on account of the fact that the legal notice was not issued within the prescribed period of 15 days. As regards the other two cheques i.e., for the amount of Rs. 11,45,521/- and Rs. 2 crores, the notices were sent in time and, therefore, all the other ingredients of Section 138 having been satisfied the accused, which comprise of the said company and the present petitioner, were convicted and sentenced as mentioned above. 16. I have heard the learned counsel for the parties at length and I have also examined the written submissions submitted by the counsel for the petitioner as well as counsel for the respondent/complainant. The essential grievance of the petitioner, apart from the issue of merits, is that the petitioner has been convicted and sentenced without being summoned as an accused. This, according to him, has resulted in gross miscarriage of justice. While, it is true that the proceedings conducted pre-trial and the trial itself could have been formalized in a better manner, it does not mean that because there is some irregularity in the proceedings, the petitioner would be entitled to an order of acquittal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 an 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. (underlining added) 18. This decision makes it absolutely clear that even where specific averments are not made in the complaint that the person accused was in charge of, or responsible for the conduct of the business of the company, the signatory of the cheque in question would clearly be responsible for the incriminating act and would be covered under sub-section (2) of Section 141 of the Act. In the present case, the petitioner admitted that he was the signatory of the cheques which were dishonoured. This clearly brought him within the ambit of Section 141(2) of the Act. So, once the offence under Section 138 is made out on merits, the petitioner cannot escape his liability because he is covered under Section 141(2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r stage in the proceedings. 20. A Constitution Bench of the Supreme Court in the case of Willie (William) Slaney v. State of M.P., AIR 1956 SC 116 with regard to the provisions of Sections 225, 232, 535 and 537 of the Code of Criminal Procedure, 1898 which correspond to Sections 215, 464(2), 464 and 465 of the 1973 Code, held as under: 44. Now, as we have said, Sections 225, 232, 535 and 537(a) between them, cover every conceivable type of error and irregularity referable to a charge that can possibly arise, ranging from cases in which there is a conviction with no charge at all from start to finish down to cases in which there is a charge but with errors, irregularities and omissions in it. The Code is emphatic that 'whatever' the irregularity it is not to be regarded as fatal unless there is prejudice. It is the substance that we must seek. Courts have to administer justice and justice includes the punishment of guilt just as much as the protection of innocence. Neither can be done if the shadow is mistaken for the substance and the goal is lost in a labyrinth of unsubstantial technicalities. Broad vision is required, a nice balancing of the rights of the State and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the trial and at once invalidates the conviction. Others are not vital and whatever the irregularity they can be cured; and in that event the conviction must stand unless the Court is satisfied that there was prejudice. Some of these matters are dealt with by the Code and wherever that is the case full effect must be given to its provisions. 22. In State of M.P. v. Bhooraji, (2001) 7 SCC 679, the Supreme Court, with reference to the provision of Section 465 of the Code, held as under: 12. Section 465 of the Code falls within Chapter XXXV under the caption "Irregular Proceedings". The Chapter consists of seven sections starting with Section 460 containing a catalogue of irregularities which the legislature thought were not enough to axe down concluded proceedings in trials or enquiries. Section 461 of the Code contains another catalogue of irregularities which in the legislative perception would render the entire proceedings null and void. It is pertinent to point out that the former catalogue contains the instance of a Magistrate, who is not empowered to take cognizance of offence, taking cognizance erroneously and in good faith. The provision says that the proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh the proceedings merely on the ground of such error, omission or irregularity. 16. What is meant by "a failure of justice" occasioned on account of such error, omission or irregularity? This Court has observed in Shamnsaheb M. Multtani v. State of Kamataka : (2000) 3 SCC 698; (2000) SC (Cri) 738 thus: (SCC p. 585, para 23) 23. We often hear about 'failure of justice' and quite often the submission in a criminal court is accentuated with the said expression. Perhaps it is too pliable or facile an expression which could be fitted in any situation of a case. The expression 'failure of justice' would appear, sometimes, as an etymological chameleon (the simile is borrowed from Lord Diplock in Town Investments Ltd. v. Deptt. of the Environment). The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage. In Dalbir Singh v. State of U.P., (2004) 5 SCC 334 the Supreme Court, with reference to Section 464 CrPC observed as under: 17. There are a catena of decisions of this Court on the same lines and it is not necessary to burden this judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the aforesaid decisions as also in Kamalanantha v. State of T.N., (2005) S SCC 194, to determine whether or not there has been a failure of justice, it is the duty of the court to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. In the present case, it is apparent that the petitioner had a fair trial. There may have been irregularities such as in the format of the complaint or the summoning order but the petitioner had a fair trial. He had full opportunity to defend himself and indeed he led evidence by producing four defence witnesses. The petitioner knew exactly what he was being tried for. This is amply demonstrated by the wording employed in the Section 251 CrPC notice as well as the Section 313 CrPC statement made by the petitioner. The facts sought to be established against him were clearly known to him and he had a full and fair chance to defend himself. Therefore, in the present case, it cannot be said that the irregularities resulted in any failure of justice. 25. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mprisonment. Insofar as the first part is concerned, I am of the view that, taking into account the fact that the petitioner has faced trial for over seven years and his health condition is not good, his period of imprisonment should be reduced from one year to six months simple imprisonment. There is another circumstance which has enabled me to come to this view. It must be remembered that initially the complaint was also directed against accused No. 2 (Dr Tushar D Pimpale). He was shown as the person who was incharge of the day-to-day affairs of the company. The petitioner's Section 313 CrPC statement also indicates this. DW 4 had also stated that the petitioner was an unpaid director of the company. Thus, it is clear that the complaint as originally instituted also included Dr. Pimpale as an accused on the ground that he alongwith the petitioner was responsible for the day-to-day functioning of the company. The words used in the complaint were: Accused No. 2 is a Director of M/s Good Value Marketing Company Ltd. Accused No. 1 and along with Chairman is responsible for day-to-day functioning of the company accused No. 1. So, it was not as if the petitioner was the sole per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 357(3) of the Code. This is the view taken by the Supreme Court in K Bhaskaran (supra) as under:- 29. The trial in this case was held before a Judicial Magistrate of the First Class who could not have imposed a fine exceeding Rs. 5000/- besides imprisonment. The High Court while convicting the accused in the same case could not impose a sentence of fine exceeding the said limit. 30. It is true, if a judicial Magistrate of the First Class were to order compensation to be paid to the complainant from out of the fine realised the complainant will be the loser when the cheque amount exceeded the said limit. In such a case a complainant would get only the maximum amount of rupees five thousand. 31. However, the Magistrate in such cases can alleviate the grievance of the complainant by making resort to Section 357(3) of the Code. It is well to remember that this Court has emphasised the need for making liberal use of that provision (Hari Singh v. Sukhbir Singh, (1998) 4 SCC 551: 1988 SCC (Cri) 984: AIR 1988 SC 2127). No limit is mentioned in the sub-section and therefore, a Magistrate can award any sum as compensation. Of course, while fixing the quantum of such compensation the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 357 is not ancillary to other sentences but is in addition thereto. In Hari Singh v. Sukhbir Singh it was observed that the power under Section 357 is a measure of responding appropriately to crime as well as reconciling the victim with the offender. It is, to some extent, a recompensatory measure to rehabilitate to an extent the beleaguered victims of the crime; a modern constructive approach to crimes and a step forward in our criminal justice system. In Sarwan Singh v. State of Punjab it was held that in the awarding compensation, the court has to decide whether the case is a fit one in which compensation has to be awarded. If it is found that the compensation should be ordered to be paid, then while arriving at the quantum to be paid, courts are obliged to keep into account the capacity of the accused to pay the compensation besides taking into consideration also the nature of the crime in each case, the justness of the claim for compensation and the need for it in the context of the victim or members of the family of the victim and other relevant circumstances. If any, in so fixing or apportioning the amount of compensation. As noted above, the mode of application of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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