Priti Bhojnagarwala Vs. State of Gujarat and anr. - Court Judgment

Excerpt:
- - parikh in his individual capacity as well as the karta of his hindu undivided family and also by his close near relative, as stated in annexure i which will be a part and parcel of this judgment, 2. with the consent of the learned advocates for both the parties, these 30 criminal misc. 2 and 3 both had jointly represented to the complainant through their good offices of yogendra jagdishbhai with whom the daughter of complainant's sister has married as well as their (manoj and yogendra's) parents namely jagdishbhai and sulochnaben, that nidhi investment i. portfolios of shares as well as finances/deposit management to nidhi investments and the parents had orally guaranteed safety and security of the same. 3.5. as stated in para 5(a) of the complaint, the accused were paying back the.....h.h. mehta, j. 1. this is a group of 30 criminal misc. applications filed under section 482 of the code of criminal procedure, 1973 (for short 'crpc') by the petitioner-original accused no. 3-priti manoj bhojnagarwala who happens to be the wife of accused no. 2 manoj jagdishbhai bhojnagarwala, with a request to quash and set aside the respective complaints filed by mr. priyakant r. parikh in his individual capacity as well as the karta of his hindu undivided family and also by his close near relative, as stated in annexure i which will be a part and parcel of this judgment, 2. with the consent of the learned advocates for both the parties, these 30 criminal misc. applications are taken up for final hearing in a group and as the common questions of law and facts are involved in this group.....

Judgment:

H.H. Mehta, J.

1. This is a group of 30 Criminal Misc. Applications filed under Section 482 of the Code of Criminal Procedure, 1973 (for short 'CrPC') by the petitioner-original accused No. 3-Priti Manoj Bhojnagarwala who happens to be the wife of accused No. 2 Manoj Jagdishbhai Bhojnagarwala, with a request to quash and set aside the respective complaints filed by Mr. Priyakant R. Parikh in his individual capacity as well as the Karta of his Hindu Undivided Family and also by his close near relative, as stated in Annexure I which will be a part and parcel of this judgment,

2. With the consent of the learned Advocates for both the parties, these 30 Criminal Misc. Applications are taken up for final hearing in a group and as the common questions of law and facts are involved in this group of 30 Criminal Misc. Applications, they are disposed of by this one common judgment.

3. Common facts leading to this group of 30 Criminal Misc. Applications in a nutshell are as follows. The facts stated hereinbelow are taken from the complaint of Criminal Case No.3432 of 1998 which is sought to be quashed in (Main) Criminal Misc. Application No. 4188 of 1999.

3.1 The complainant whose complaint is sought to be quashed which is filed as Private Complaint in the Court of the learned Metropolitan Magistrate, Court No. 4, Ahmedabad (who will be referred to hereinafter as the learned Magistrate for the sake of convenience) and as per the complaint of Criminal Case No. 3432 of 1998 which is sought to be quashed by preferring Criminal Misc. Application No. 4188 of 1999, accused No. 1 is Nidhi Investments (Private Firm). Accused Nos. 2 and 3 are the partners in that firm i.e. accused No. 1. Accused No. 2 is a husband of accused No. 3.

3.2. Complainant's sister's daughter has married with one Yogendra Jagdishbhai Bhojnagarwala who happens to be the younger brother of accused No. 2 Manoj Bhojnagarwala and there have been family relations between accused Nos. 2 and 3 and complainant since long. As per the case of complainant, Nidhi Investments (Private Firm) started to function and carry on its business with effect from 27.6.1992.

3.3. As stated in Para 3 of the complaint, accused Nos. 2 and 3 both had jointly represented to the complainant through their good offices of Yogendra Jagdishbhai with whom the daughter of complainant's sister has married as well as their (Manoj and Yogendra's) parents namely Jagdishbhai and Sulochnaben, that Nidhi Investment i.e. accused No. 1 handles all portfolio of shares and finances in the most successful way and the complainant being the relative should entrust both these aspects i.e. portfolios of shares as well as finances/deposit management to Nidhi Investments and the parents had orally guaranteed safety and security of the same.

3.4. As stated in Para 4 of the complaint, during the period from 20.12.1997 to 10.9.1998, the complainant Mr. Priyakant R. Parikh advanced his deposits to the tune of Rs. 2,03,00,000 by different cheques to the Nidhi Investments. The particulars of aforesaid deposits are stated in Para 4 of the complaint. It is the case of the complainant that a large amount of money was advanced as deposits on various dates, to the accused and accused Nos. 2 and 3 represented to the complainant that all the members of the family are concerned (connected) with Nidhi Investment, and, therefore, accused No. 2 Manoj is authorised to sign as Authorised Signatory, and, therefore, the complainant had no reason to suspect the mala fide of any of the accused.

3.5. As stated in Para 5(a) of the complaint, the accused were paying back the amounts as well as interest to the complainant. As per particulars given in Para 5(A) of the complaint, the accused returned a total amount of Rs. 1,05,00,000/- towards the principal amount during the period from 4.4.1998 to 16.9.1998 by 12 different items. It is also the case of the complainant that accused have paid in all Rs. 1,02,25,500/- towards interest to the complainant by different 38 items.

3.6. It is further the case of the complainant that the complainant has advanced an amount of Rs. 2,03,00,000/- to accused and as against that amount, the complainant has received back a total amount of Rs. 1,17,25,500/- inclusive of the interest. Thus, the complainant has a right to recover an amount of Rs. 85,74,500/- from the accused for which the accused has issued different cheques of which particulars are given in Annexure I. As that cheques have been bounced without they being honoured, a notice was issued and the reply was expected from the accused. The complainant received a reply from the accused in vague manner. As per the case of the complainant, by that reply, the accused have attempted to settle the amount of interest paid by them, to the complainant as principal amounts which also establishes on intention of the accused to deceive the complainant by luring him to finance the funds.

3.7. As per the case of the complainant, the deposits were given way back in the year 1997 and accused had agreed to pay the agreed rate of interest on the same because that would be the common procedure of the market.

3.8. Accused are required to pay an amount of Rs. 85,74,500/- for clearance of debt for which accused have issued various cheques of various dates. Because of the representations of the accused, different cheques of different dates came to be presented by the complainant on particular dates, because of the promises of the accused of arrangement of clearance. One of the cheques issued by the accused is the subject-matter of Criminal Case No. 3432 of 1998 for which the notice dated 5.l 1.1998 has been issued. The complain ant received a vague reply from the accused. By reply, accused have neither admitted their liabilities, nor did they deny the same. It is the case of the complainant that the accused have committed an offence punishable under Section 138 of the Act.

3.9. As stated in Para 7 of the complaint, it is a defence of the accused that Nidhi Investment is a proprietory firm and none of the accused named in the cause title of complaint have nothing to do with that firm. This stand of the accused No. 2 Manoj Bhojnagarwala is highly unreasonable and unacceptable because said Manoj Bhojnagarwala had issued a cheque as an Authorised Signatory of Nidhi Investment. That cheque has been annexed as Annexure A with the complaint.

3.10. The fact that Manoj Bhojnagarwala issued cheques in two different capacities, establishes design of family of accused to cheat the family of the complainant and the complainant himself. As stated in Sub-para 2 of Para 7 of the complaint, the total amount of Rs. 2.5 crores remains outstanding from the family of the accused and the family of the accused has now decided to invite the complainant for legal battle rather than settlement of legal debts because the accused Manoj Bhojnagarwala has conveyed to the complainant that the convictions are hard to be earned and difficult to be implemented. This message has shocked the complainant to the extent that the complainant was required to consult the Advocate for the return of the cheques.

3.11. As stated in Para 9 of the complaint, in all nine numbers of cheques returned with endorsement that accused have failed to make funds available for the clearance of the cheques. For each and every cheque, complainant, therefore, got issued distinct and separate notice calling upon the accused to comply with requirements of Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act'). The accused have failed to comply with the notice.

3.12. As stated in Para 10 of the complaint, Section 118 of the Act provides' for presumption of legal dues in event of issuance of the cheque unless specifically denied. It is in this view that accused cannot claim non-compliance to the provisions of the Act and since they cannot claim non-compliance, they are liable for the prosecution under Section 138 of the Act.

3.13. As stated in Para 11 of the complaint, a reply of the accused establishes their intention to misguide even the learned Advocate consulted by them for the purposes of reply. The reply clearly establishes that accused Manoj Bhojnagarwala has not briefed the learned Advocate replying the notice and has not brought to the notice of the learned Advocate a fact that Mr. Manoj Bhojnagarwala has issued the cheque as an Authorised Signatory of Nidhi Investments and on receipt of such reply, on the basis of belief, the complainant has been misled by the-learned Advocate to believe and trust the words of the accused that Nidhi Investment is a private firm. This establishes that the accused are capable of misguiding their own Advocate and are the persons who have misguided their relations namely the complainant and his family members.

3.14. As stated in Para 12, Criminal Case No. 3432 of 1998 has been filed for cheque No. 50142 dated 23.10.1998 for Rs. 40,000/-. That cheque was drawn on the Bank namely Textile Traders Co-operative Bank, New Cloth Market Branch, Ahmedabad. This cheque was deposited by the complainant as per the instruction of the accused and the same has been returned as uncleared because the Bankers of the accused informed the Bankers of the complainant that the accused have failed to arrange for the funds necessary for clearance of the cheque,

3.15. In reply, the accused have nowhere stated as to how and where they will fulfil the promises made by them by issuance of a Negotiable Instrument i.e. cheque. This establishes prima facie an offence punishable under Section 138 of the Act.

3.16. As stated in Para 15 of the complaint, as accused have misguided the complainant,the accused have committed offences of sharing common intention to cheat and/or abatementto cheat the complainant.

3.17. As stated in Para 16 of the complaint, before filing the complaint, the complaint addressed a legal notice as required by the provisions of the Act to the accused within the time prescribed by the Act. Accused have replied that notice within the time prescribed by the Act. Considering the fact of issuance of the notice and the reply received from the accused, the complainant has stated that the complaint is filed within the time and within the jurisdiction of the Court of the learned Magistrate and the cheques have been issued by accused from the Bankers stationed within the local jurisdiction of the Court of the learned Magistrate.

3.18. The complainant has stated specifically in Para 17 of the complaint that for the purpose of proving the charges levelled against the accused, the complainant wants to examine witnesses cited under caption 'witnesses', and the complainant has sufficient documentary as well as oral evidence.

3.19. The complainant has cited four witnesses out of which one is the Bankers of the accused. Lastly in a prayer clause i.e. in Para 18, the complainant has requested the learned Magistrate to take up legal proceedings against the accused for offence punishable under Section 138 of the Negotiable Instruments Act as well as the offences punishable under Section 420 read with Section 34 and/or read with Section 114 of the IPC. The complainant has produced certain documents along with a separate list on the date on which he filed the complaint.

3.20. On filing of this aforesaid private complaint by the complainant in the Court of the learned Magistrate, the learned Magistrate recorded a verification of the complainant as required to be recorded under Section 200 of the Cr.PC. On reading the complaint as a whole together with a verification of complainant on oath, and the documents produced with said complaint, as it appears, the learned Magistrate come to a conclusion that there is a sufficient ground for proceeding and, therefore, he took cognizance of offence punishable under Section 138 of the Act. He passed an order to register the complaint of the complainant as Criminal Case and issue summon against the accused on payment of process fees for securing the presence of accused.

4. As per the arguments of the learned Advocates for both the parties, it appears that in all the complaints which are sought to be quashed by filing different Criminal Misc. Applications in this Court, the accused are the same persons in all the complaints. The complainant is different person in different complaints. That complainant, Mr. Priyakant R. Parikh or his HUF or his very near relatives. In each complaint, cheque and amount are different but the signatory i.e. drawer of the cheque is the common person i.e. accused No. 2 Manoj J, Bhojnagarwala. In some of the cheques, accused No. 2 Manoj has signed as a proprietor of Nidhi Investment and in some of the cheques, he has signed as Authorised Person of Nidhi Investment. Particulars of such different complaints, different cheques, dates and amounts and the status in which accused No. 2 has signed the cheques are reflected in Annexure I which shall be treated as part of this common Judgment.

5. I have heard Mr. K.S. Nanavati, the learned Senior Advocate for the applicants, Mr. H.L. Jani, the learned APP for the State and Mr. M.R. Barot, the learned Senior Advocate for the respondent No. 2-original complainant in respective cases, in detail at length. I have also perused the complaint and documents produced with the complaint.

6. Original accused No. 3-Pritiben Manojbhai Bhojnagarwala has requested this Court to quash the different complaints filed by the original complainant (Mr. Priyakant R. Parikh in his individual capacity as well as Karta of his own HUF and his son and other near relatives), on the ground that on reading the complaint in each case, the facts stated therein do not constitute an offence of which cognizance has been taken by the learned Magistrate. She has advanced some other grounds also for quashing the complaints lodged against her.

7. As these applications are filed under Section 482 of Cr.P.C. it would be profitable to know as to under what circumstances, this High Court can exercise its inherent jurisdiction and for what purpose. Section 482 reads as follows:

Section 482 : Saving of inherent powers of High Court.--Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

8. In case of Janata Dal v. H.S. Chawdhary and Ors., III (1992) CCR 326 (SC) = (1992) 4 SCC 305, the Hon'ble Supreme Court has dealt with Sections 397, 401, 482 of Cr.P.C. In Paras 131, 132 and 137, the Hon'ble Supreme Court has observed as follows:

Para 131: 'Section 482 which corresponds to Section 561-A of the old Code and to Section 151 of the Civil Procedure Code proceeds on the same principle and deals with the inherent powers of the High Court. The rule of inherent powers has its source in the maxim 'Quadolex aliquid alicui concedit, concedere videture id sine quo ipsa, ess uon potest' which means that when the law gives anything to anyone, it gives also all those things without which the thing itself could not exist.'

Para 132 : 'The Criminal Courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the Courts exist. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles.'

Paras 136 & 137: 'The inherent power under this section can be exercised by the High Court (1) to give effect to any order passed under the Code; or (2) to prevent abuse of the process of any Court; or (3) otherwise to secure, the ends of justice.......'

'The power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party. It should not be exercised as against the express bar of law engrafted in any other provision of the Code. The power should not be exercised to stifle a legitimate prosecution. The High Court being the highest Court of a State should normally refrain from giving a premature decision in a case wherein the entire facts are extremely incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved whether factual or legal are of great magnitude and cannot be seen in their true perspective without sufficient material............'

9. In case of R.D. Bajaj v. K.P.S. Gill, 1996 Cr.L.J. P. 381 (SC), it has been held as follows:

'The power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare case, that the Court will not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extra ordinary or inherent powers do not confer an arbitration jurisdiction on the Court to act according to whim or caprice.'

10. In case of State of Bihar v. Rajendra Agrawalla, 1996 SCC (Cri) 628, the Hon'ble Supreme Court has observed as under :

'The inherent power of the Court under Section 482 of the Code of Criminal Procedure should be very sparingly and cautiously used only when the Court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the Court, if such power is not exercised. So far as the order of cognizance by a Magistrate is concerned, the inherent power can be exercised when the allegations in the First Information Report or the complaint together with the other materials collected during investigation taken at their face value, do not constitute the offence alleged. At that stage, it is not open for the Court either to sift the evidence or appreciate the evidence and come to the conclusion that no prima facie case is made out.'

11. Keeping in mind the above legal position, in other words it can be said that if on reading the complaint and documents produced along with complaint, if taken at their face value, constitute the offences alleged and on the basis of such facts, if this Court comes to a conclusion that there would not be any injustice or there would be no abuse of the process of the Court, then powers under Section 482 of Cr.P.C. should not be exercised by this Court at the initial stage or taking cognizance by the learned Magistrate.

12. Here in all these cases, following are the admitted facts for which neither party can agitate :

(1) Original accused No. 2 Manoj Bhojnagarwala is the husband of accused No. 3 (present petitioner in all applications);

(2) From an account in name of Nidhi Investment, accused No. 3 has issued 30 cheques. That all cheques are signed by accused No. 2 for and on behalf of Nidhi Investment. Meaning thereby, accused No. 2 has not given any cheque in his individual capacity. No doubt, accused No. 2 has signed some of the cheques, out of 30, in his capacity as Proprietor of Nidhi Investment and some of the cheques are signed by him in his capacity as Authorised Person for and on behalf of Nidhi Investment;

(3) Respective person in whose favour cheque was issued had presented that cheque in his Bank for realisation and that cheque was bounced and returned with an endorsement 'funds insufficient';

(4) on receipt of such information with regard to bouncing of cheque which he had presented in the Bank for realisation, that person in whose favour that cheque was given by accused No. 2 had addressed a statutory notice under Section 138 of the Act;

(5) There is no dispute with regard to receipt of such notice from that person in whose favour that cheque was given (i.e. complainant of respective cases);

(6) On receipt of such statutory notice under Section 138 of the Act, accused Nos. 2 and 3 (petitioners) had replied that notice separately;

(7) At the fag-end of the arguments, Mr. K.S. Nanavati, learned Senior Advocate for the petitioner has drawn an attention of this Court that present petitioner being original accused No. 3 has replied the notice of the respective complainant and copy thereof is produced in record of Criminal Misc. Application No, 4202 of 1999.

(8) There is no dispute with regard to limitation of filing the complaint in the Court of the learned Magistrate from side of any of the accused.

(9) There is no dispute with regard to jurisdiction of the Court in which the complainant has filed his complaint against the accused.

13. Mr. K.S. Nanavati, the learned Senior Advocate for the petitioner has argued that accused No. 2 Manoj Bhojnagarwala has issued cheques in his capacity as proprietor, and, therefore, only accused No. 2 can be said to be responsible for bouncing of the cheque. He has further argued that accused No. 3 who happens to be a wife of accused No. 2, is not connected any way with Nidhi Investment i.e. accused No. 1. He has further argued that the learned Magistrate has taken cognizance of offence punishable under Section 138 of the Act, and, therefore, it can be said that accused No. 2 is only responsible for bouncing of the cheque. During the course of arguments, he has further developed his arguments that in case if this Court comes to a conclusion from the documents on record that Nidhi Investment is not a sole ownership of accused No. 2 but it is a firm, then the case of the complainant falls under Section 141(1) of the Act and in that situation, looking to the averments made in the complaint, it is not the case of the complainant that accused No. 3 was 'charge of and 'responsible to and for conduct of the business' of accused No. 1 -Nidhi Investment.

14. He has further argued that in absence of averments with regard to following two most material ingredients, prima facie, accused No. 3 cannot be held responsible for bouncing of cheque given by accused No. 2:

(a) was in charge of; and

(b) was responsible to the Company for the conduct of the business of the Company.

15. He has further argued that in case, this Court comes to a conclusion that there is a prima facie case against the accused No. 1 that it is a Company within the meaning of Explanation (a) below Sub-section (2) of Section 141 of the Act, then the Company can be held guilty of the offence and shall be liable to be proceeded against and punished for an offence punishable under Section 138 of the Act. He was put much stress on aforesaid two ingredients by citing different authorities and argued that in present case, the complainant has not averred anything about accused No. 3 to prima facie show that she 'was in charge of and 'was responsible to Nidhi Investment i.e. accused No. 1' and for the conduct of the business of said Company. He has tried to strengthen his arguments by citing different authorities on the point with regard to an offence committed by a 'Company' in different statutes, wherein practically aforesaid two ingredients are necessary to hold 'director' of such Company responsible. He has cited following authorities on above point:

(1) Mahaldaram Tea Estate (Pvt.) Ltd. and Ors. v. D. N. Prodhan and Ors., 1978 LAB IC 898. Case was under Section 14A of the Employees Provident Funds and Miscellaneous Provisions Act, 1952.

(2) Anantharamaiah Woollen Factory, Bangalore-26 and Ors. v. State, 1981 LAB IC 538. Case was under Section 14(1)(A) and (1)(B) of the Employees Provident Funds and Miscellaneous Provisions Act, 1952.

(3) K.N. Genda and Anr. v. State, Etc., 1982 LAB IC 1777. Case was under Sections 14(1-a) and 14(1)(i) of the Employees Provident Funds and Miscellaneous Provisions Act, 1952.

(4) Kailash Kumar Radhakrishna Kanoria and Ors. v. State of Gujarat, 1991 (63) FLR 749. Case was under Section 14A of the Employees Provident Funds and Miscellaneous Provisions Act, 1952.

(5) Transport Corporation of India Limited and Ors. v. R.M. Gandhi and Ors., 1991 LAB I.C. 2017. Case was under Section 14A(1) and (2) read with Sections 14(2) and 14A of the Employees Provident Funds and Miscellaneous Provisions Act, 1952.

(6) Manibai (Smt.) and Anr. v. State of Maharashtra, AIR 1974 SC 434. Case was under Sections 7-16 read with Section 17(i) of the Prevention of Food Adulteration Act, 1971.

(7) G. Atherton & Co. (Pvt) Ltd. and Ors. v. Corporation of Calcutta, 1979 Cr.L.J. 86 (Cal.). Case was under Rule 39 of the Prevention of Food Adulteration Rules, 1955 read with Section 17 of the PF Act, 1954.

(8) R. Banerjee and Ors. v. H.D. Dudey and Ors., II (1992) CCR 1 (SC)=AIR 1992 SC 1168. Case was under Section 7(2) read with Section 17(4) of the Prevention of Food Adulteration Act, 1954.

(9) Bhanubhai V. Khuti v. P.5. Sharma and Anr., 1993(1) GLH 1. Case was under Section 16(1)-A, (i) read with Section 17 of the P.P. Act, 1954.

(10) Sham Sundar and Ors. v. State of Haryana, AIR 1989 SC 1982. Case was under Section 10 of the Essential Commodities Act, 1955.

(11) State of Karnakata v. Pratap Chandra and Ors., AIR 1981 SC 872. Case was under Section 18A read with Section 34 of the Drugs and Cosmetics Act, 1940.

(12) Bakridan Bibi and Ors. v. State of Bihar, 1973 CrLJ 1328 (Pat.). Case was under Section 28(a) and Section 29 of the Payment of Bonus Act, 1965.

(13) Siddharth Kejriwal v. Regional Director, ESIC, 1955(1) LLJ (pages 59 to 71 in compilation of authorities supplied for study by this Court), Case was under Sections 85(a) and 86(3) of the Employees State Insurance Act, 1948.

(14) Girdhari Lal Gupta v. DM Mehta and Anr., AIR 1971 SC 2162. Case was under Section 23-C(1)(2) of Foreign Exchange Regulations Act, 1947.

(15) Kedar Nath Goenka and Ors. v. Superintendent of Central Excise and Ors., 1979 CrLJ 421. Case was under Sections 9(1) and 9-C(1) of the Central Excise and Salt Act.

(16) J.R. Grover v. Assistant Director of Enforcement. Directorate of Finance, Jullundur City, 1987 (31) Excise Law Times (P&H;) 682. Case was under Sections 8(2), 4, 6 and 8 of the Foreign Exchange Regulations Act, 1973.

(17) Adoni Cotton Mills Ltd. and Ors. v. Regional Provident Fund Commissioner and Ors., 1995 Supp. (4) SCC 580. Case was under Sections 14 and 14A of the Employees Provident Funds and Miscellaneous Provisions Act, 1952.

Aforesaid all cases may be relevant, if case of the complainant falls under Section 141(1) of the Act because in almost all above cases, the Courts have dealt with aforesaid two important ingredients for holding the Director liable in the case in which Company is an accused. There cannot be any dispute for the principles! of law enunciated in aforesaid cases, and I am of the view that aforesaid authorities will surely be applicable only when case falls under Section 141(1) of the Act and not otherwise.

16. In complaint which is sought to be quashed by accused No. 3, complainant has described as accused No. 1-Nidhi Investment as a firm. As against this, the applicant in Para 4 of memo of her application stated that the petitioner's husband is the sole proprietor of Nidhi Investment, meaning thereby the applicant has come out with a specific case that she is not at all concerned with accused No. 1 firm because that firm is of sole proprietorship of her husband. Thus it is her case that at the best accused No. 2 can be held responsible for bouncing of the cheque because he has issued a cheque drawn on an account maintained by him in name of Nidhi Investment with a Banker for payment.

17. This Court is well aware of the fact that at the time of deciding application under Section 482, Cr.P.C. this Court cannot look into other documentary evidence produced by either of the parties and that this Court has to examine only a complaint and documents produced with the complaint before the Trial Court before the learned Magistrate who took cognizance for issuance of process. In these matters, petitioner has stated certain facts, disowning her liability for bouncing of cheque in memo of her Application which is also supported with her affidavit. The respondent No. 2 i.e. original complainant made his appearance before this Court and filed his reply opposing application of petitioner. It is also supported with his affidavit. He has produced certain documents in support of his affidavit. The petitioner has filed her additional affidavit in form of rejoinder which is at Page 43. She has also produced a copy of Summary Civil Suit Nos. 5507 of 1998 and 5385 of 1998 filed by respondent No. 2 i.e. complainant against three persons named as accused in the complaint and other persons liable and responsible for debt due from Nidhi Investment, to the plaintiff. Respondent No. 2 i.e. original complainant has also filed one additional reply supported with affidavit (at Pages 89 to 101). Along with that additional affidavit in reply, the respondent No. 2 has filed certain documents. Both the parties have referred to affidavits and documents during the course of their arguments. It is a well settled principle of law that all these documents cannot be considered by this Court at this stage and the respective parties can lead that evidence when trial will begin before the Trial Court.

18. As against the contention of complainant that accused No. 1 Nidhi Investment is a private firm and present petitioner i.e. accused No. 3 is a partner in that firm, the petitioner has come out with her case that accused No. 1 is a proprietary firm and is of sole ownership of accused No. 2 only. This Court is required to be prima facie satisfied as to whether in fact accused No. 1 is a sole proprietary firm or a partnership firm and for that purpose some documents are taken into consideration.

19. The respondent No. 2 has produced one certificate dated 16.10.1998 issued by Textile Traders Co-operative Bank Ltd. at Page 117, wherein the Bank has certified that as per the Bank's record, the persons named in that certificate are the partners of M/s. Nidhi Investment and they maintain current account with that Bank. Names of nine persons are stated to be partners of that M/s. Nidhi Investment. Name of present petitioner is at Serial No. 6. Name of accused No. 2 Manoj Bhojnagarwala appears at Serial No. 2. Over and above, the respondent No. 1 original complainant has produced a xerox copy of form of application by which current account was opened with Textile Traders Co-operative Bank Ltd. That form is at page 37. It is dated 2.7.1992. In column with regard to constitution, it is stated that it is a joint account. Accused No. 2 and his brother V.K. Bhojnagarwala both have signed that application form. Below it, there are contents with regard to specific specimen signatures-cum-indemnity for collection of funds, etc. Present petitioner is one of the signatory below that column. On Page 38 of that form, there are certain different columns applicable to different types of account holders. Column: A is for individual accounts. Column: B is for joint accounts. Column: C is for sole proprietary accounts and Column: D is for societies, club or similar bodies. On this page 78, accused No. 2 and his younger brother P.N. Bhojnagarwala have signed in Column: B meant for joint account. If it is a case of petitioner that accused No. 1 is of ownership of sole proprietor-accused No. 2, then certainly accused No. 2 would have signed in Column No. B which is specifically meant for sole proprietary accounts, and, therefore, an account in name of Nidhi Investment is a joint account of the persons named in second part of page 37. Page 39 is a copy of Card containing specimen signatures of persons operating current account. Name of present petitioner is stated at Serial. No. 5-Pritidevi Bhojnagarwala. She has given her specimen signature against her name. The account is in the name of Nidhi Investment. The account number is 2900, and, therefore, the complainant has prima facie satisfied that accused No. 1 is not a proprietory concern of sole ownership of accused No. 2, only but from aforesaid documents, it clearly appears that Nidhi Investment is nothing but 'an association of individuals'. As per definition of word 'company' given in Clause (a) of Explanation below Section 141 of the Act, 'company' means anybody corporate and includes a firm or other association of individuals. Thus prima facie complainant has satisfied this Court that accused No. 1 is a Company within the meaning given under Clause (a) of Explanation below Section 141 of the Act. At this juncture, it is required to make clear as to what is a status of members of 'Association of individuals'. Definition of 'director' is given in Sub-clause (b) of Explanation below Section 141 of the Act. In the case of partner of the firm, that partner is a Director, and, therefore, in my view, when association of individuals is considered to be a Company, then individuals of that association are deemed 'directors'.

20. Admittedly, complaint is filed for bouncing of cheque given by accused No. 2 for and on behalf of accused No. 1-Nidhi Investment. In view of legal position with regard to association of individuals, and an individual member of that association, it can be said that accused No. 2 in his capacity as deemed Director issued the cheque in question, to the complainant which ultimately came to be bounced, and, therefore, the offence committed by accused No. 2 in his capacity as deemed Director is an offence committed by 'Association of Individuals' and same is punishable under Section 141 of the Act. If an offence with regard to dishonour of cheque for insufficiency of funds, etc. is committed by a sole individual, then it is an offence punishable under Section 138 of the Act, and if that offence of dishonour of cheque for insufficiency of funds is committed by a 'Company', then an offence can be said to have been committed by a Company under Section 141 of the Act. It may fall either under Sub-section (1) or Sub-section (2) of Section 141 of the Act, Looking to Section 141 of the Act, Company can commit an offence of Section 138 of the Act by two different modes. One is described in Sub-section (1) of Section 141 of the Act, whereas another is described in Sub-section (2) of Section 141 of the Act. At this juncture, Section 141 of the Act is required to be taken into consideration. It reads as follows:

Section 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.

(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 purpose 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.

21. As per Sub-section (1) of Section 141, company as well as every person who at the time when offence was committed was in-charge of and was responsible to the company for conducting of the business of the company shall be liable to be proceeded against and punished accordingly. So if complainant has specifically stated in his complaint that along with company, its director has also committed an offence punishable under Section 138 of the Act, then he is required to state specifically that the persons named as Directors in the complaint were in charge of and were responsible to the company for the conduct of the business. If such type of case under Section 141(1) of the Act is of the complainant, then certainly arguments of Mr. K.S. Nanavati require some consideration. Admittedly, in this case, the complainant has not specifically or impliedly stated that accused Nos. 2 and 3 were in charge of and were responsible to the company for the conduct of the business of NidhiInvestment, and, therefore, arguments of Mr. K.S. Nanavati are more attractive, if complainant's case falls under Section 141(1) of the Act. Even Mr. M.R. Barot, the learned Senior Advocate for the original complainant has tried his level best to cover the case of complainant in Section 141(1) of the Act.

22. Now it is a well settled principle of law that when the learned Magistrate takes a cognizance for an offence, he is taking into consideration the contents of complaint, verification of complainant below the complaint and the documents produced with the complaint, and at the time of taking cognizance, he is required to be satisfied that there is sufficient ground for proceeding. In this case, it appears that he was satisfied for issuance of process under Section 204, Cr.P.C. as he found that there is sufficient ground for proceeding further against the accused. At this stage, it is required to place on record as to what is legal position with regard to such private complaint.

22.1 In case of Halimuddin Ahmad v. Ashoka Cement Ltd., 1976 Cr.LJ 449, it has been held as follows:

'A complainant is not required to set out in the complaint all the evidence in his possession. A complaint is only an allegation of facts which constitute an offence with a view to summoning the accused for trial. It is, therefore, not necessary for a complainant to set out in a complaint all the evidence in his possession'.

22.2 In case of Rajesh Bajaj v. State NCT of Delhi and Ors., II (1999) SLT 523=II (1999) CCR 4 (SC)=1999 (3) SCC 259, it has been held by the Hon'ble Supreme Court as follows:

'It is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent. Splitting up of the definition into different components of the offence to make a meticulous scrutiny, whether all the ingredients have been precisely spelled out in the complaint, is not the need at this stage'. (That is at the stage under Section 482, Cr.P.C.).

It is further held that-

'If factual foundation for the offence has been laid in the complaint, the Court should not hasten to quash criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details. For quashing FIR (a step which is permitted only in extremely rarest of rare case), the information in the complaint must be so bereft of even the basic facts which are absolutely necessary for making out the offence'.

22.3 In case of State of West Bengal and Ors. v. Swapan Kumar Guha and Ors., AIR 1982 SC 949, it has been held as follows:

'Whether an offence has been disclosed or not must necessarily depend on the facts and circumstances of each particular case. If on a consideration of the relevant materials, the Court is satisfied that an offence is disclosed, the Court will normally not interfere with the investigation into the offence and will generally allow the investigation in the offence to be completed for collecting materials for proving the offence. If, on the other hand, the Court on a consideration of the relevant materials is satisfied that no offence is disclosed, it will be the duty of the Court to interfere with any investigation and to slop the same to prevent any kind of uncalled for and unnecessary harassment to an individual'.

Here in this case, the learned Magistrate, after considering the materials placed before him was satisfied that this was a fit case for issuance of summons under Section 204 Cr.P.C. then this Court should be very slow in disturbing that order of issuance of process.

At this stage, it is required to know as to what is meant by words 'cognizance'. In case of Anil Saran v. State of Bihar and Anr., AIR 1996 SC 204, it has been held in Para 4 as follows:

'Though the Code defines 'cognizable offence' and 'non-cognizable offence', the word 'cognizance' has not been defined in the Code. But it is now settled law that the Court takes cognizance of the offence and not the offender. As soon as the Magistrate applies his judicial mind to the offence stated in the complaint or the police report, etc. cognizance is said to have taken cognizance of the offence takes place when the Magistrate takes judicial notice of the offence.'

Here in this case, a legal position with regard to partnership firm is decided, and in Para 7, it has been held as follows:

'Partnership firm is not a legal entity but a legal mode of doing business by all the partners, until the firm is dissolved as per law and the accounts settled, all the partners have dominion in common over the property and funds of the firm. Only after the settlement of accounts and allotment of respective shares, the partner becomes owner of his share.'

Thus the partnership firm is nothing but an association of individuals of which legal position is discussed hereinabove.

23.1 In that case, the appellant was a partner in M/s. Agjevinath Films along with second respondent and one another third person of that firm had entered into an agreement with the producer, Bhojpuri Film for distribution of one film. One Shiv Prakash, as a complainant on behalf of M/s. Agjevinath Films lodged the complaint against one another firm M/s. Sapna Enterprises. That complaint was for offences punishable under Sections 406 and 420, IPC. Subsequently, it came to the knowledge of the complainant that the first accused colluded and conspired by the appellant with another partner Ajit with an intention to defraud 2nd respondent. In that case, it was alleged that the appellant and Ajit induced first accused by conspiracy to illegally obtain the films prepared for themselves and fabricated the documents, and thereby Ajit one of the partners of the first accused firm i.e. M/s. Sapna Enterprises and the appellant in collusion and in conspiracy with common intention to do mischief committed the offences referred to earlier. The Hon'ble Supreme Court ultimately held in Para 9 that in view of the facts and circumstances, the imputation alleged against the appellant have been done in his capacity as partner of the firm. It is further held that whether offence has been made out and whether he is liable or what are the defences open to him, are not matters at this stage for consideration and it is for the learned Magistrate to proceed with the trial and to deal with the same in accordance with law.

24. No doubt, this case was with regard to Section 204, Cr.PC, but in this case, the Hon'ble Supreme Court has held that at the time of taking cognizance, the defence of accused is not required to be taken into consideration. The learned Magistrate has only to decide as to whether offence is made out or not. The same analogy will be applicable to this application under Section 482, Cr.PC because it is the case of the petitioner that the learned Magistrate has abused the process of law by issuing summons against the accused. Under the circumstances, at this stage, in my view, defence of petitioner is not required to be taken into consideration.

25. In case of Mahavir Prasad Gupta and Anr. v. State of National Capital Territory of Delhi and Ors., VII (2000) SLT 57=IV (2000) CCR 84 (SC)=2000 (8) SCC 115, it has been held as follows:

'The Court would not be justified in embarking upon an inquiry as to the reality or genuineness or otherwise of the allegations made in the FIR or the complaint or as to whether the allegations in the complaint are likely to be established by evidence or not.'

26. In case of State of Bihar v. Murad Ali Khan and Ors., 1988(4) SCC 655, it has been held the Hon'ble Supreme Court as follows:

'In exercising that jurisdiction, the High Court should not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not. That is the function of the trial Magistrate when the evidence comes before him,'

In this authority, a case of Municipal Corporation of Delhi v. R.K. Rohtagi, 1983(1) SCC 1, has been referred to, wherein it has been held that-

'It is, therefore, manifestly cleat that proceedings against an accused in the initial stage can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegations and the complaint as they are, without adding or subtracting anything, if no offence is made out, then the High Court will be justified in quashing the complaint in exercise of its powers under Section 482 of the CrPC.'

27. In case of Medchl Chemicals & Pharma (P.) Ltd. v. Biological E. Ltd. and Ors., II (2000) SLT 414=I (2000) CCR 288 (SC)=2000(3) SCC 269, it has been held as follows:

'Needless to record however ant) it being a settled principle of law that to exercise powers under Section 482 of the Code, the complaint in its entirety shall have to be examined on the basis of the allegation made in the complaint and the High Court at that stage has no authority or jurisdiction to go into the matter or examine its correctness. Whatever appears on the face of the complaint shall be taken into consideration without any critical examination of the same.'

28. In case of Municipal Corporation of Delhi v. Purshotam Dass Jhunjunwala and Ors., AIR 1983 SC 158, it has been held as follows:

'As to what would be the evidence against the respondents is not a matter to be considered at this stage and would have to be proved at the trial, We have already held that for the purpose of quashing the proceedings only the allegations set forth in the complaint have to be seen and nothing further.'

29. Keeping in mind the above legal position with regard to complaint to be examined by this Court in the matter under Section 482, CrPC. now I will discuss as to what is the case in complaint and accompanying papers.

30. Admittedly when complainant lodged his private complaint, he produced certain documents with list which is at page 18. If we peruse that list at page 18, we find that complainant has produced about five documents. First is a Bank's Memo dated 30.10.1998 under which cheque was returned to the complainant with a reason of 'funds insufficient'. That is at page 19. Copy of cheque is at page 20. It is dated 23.10.1998, the drawer of which is Nidhi Investment which is signed by accused No. 2 as Proprietor and same is issued for Rs. 40,000/-. After bouncing of cheque and on receipt of Bank's memo, the complainant addressed a statutory notice under Section 138 of the Act to Nidhi Investment which is a private firm and its Nos. 2 to 7 deemed Directors, one of them is present petitioner and her name is at Serial No. 3. Admittedly, that notice has been received by the petitioner. The complainant has not placed a copy of reply given by present petitioner in reply to complainant's statutory notice under Section 138 of the Act. Mr. Nanavati has drawn an attention of this Court that in Criminal Misc. Application No. 4202 of 1999, the complainant has produced a copy of reply of notice dated 21.11.1998 given by present petitioner to the complainant. It is at pages 30 and 31 in the matter of Criminal Misc. Appln. No. 4202 of 1999.

31. On return of cheque, the drawee i.e. in whose favour that cheque is given, has to address a statutory notice under Section 138 of the Act and on expiry of the prescribed period of limitation, if the drawer of the cheque fails to comply with the directions given in the notice and fails to make the payment of Cheque, then the complainant has no other option except to lodge the complaint in the Court and accordingly, complainant has lodged the complaint. The complainant has produced all necessary documents along with list. The learned Magistrate has examined the complaint, verification and these documents produced with the list and on the basis of this, he has taken cognizance of offence against the present petitioner. Whether there is a prima facie case against the present petitioner or not, this Court is required to examine the complaint and the documents produced at the time of lodging the complaint. Except this, this Court is not expected to examine any other documents produced by the present petitioner in support of her case which is in form of defence. That documents cannot be taken into consideration at this juncture. Under the circumstances, this Court has examined that documents produced with the list and the complaint itself. The notice under Section 138 of the Negotiable Instruments Act is a base of the criminal complaint. The copy of notice is at pages 21 to 25. This notice is given to main accused i.e. private firm namely Nidhi Investment and six deemed Directors, out of which the present petitioner is at Serial No. 3. Notice is addressed to all, including present petitioner (accused No. 3).

31.1 In Para 6 of Notice, the complainant has stated as follows :

'You have borrowed a total deposit to the tune of Rs. 1.39 crores from my client from his personal account as well as from him as Karta of his HUF towards need in your business.' 31.2 In Para-B of Notice, the complainant has stated as follows :

'After borrowing the deposits, you were regularly paying the interest thereon, at the agreed rate thereof, however, lately your capacity to repay even the interest was becoming objectionable and doubtful. My client, therefore, had no choice but to request you to return the amount to him, along with the interest accrued thereon.' 31.3 In Para 9 of Notice, it has been stated as follows:

'It might to be brought to your notice at this stage that it is my client Mr. Parikh in his dual capacity and also all his family members have given to you a large sums of deposits and, therefore, they were of course worried about the security of the deposits.

And, therefore, in the larger interest of my client's family, the deposit amount was requested to be returned.'

31.4 In Para 10 of Notice, it has been stated as follows:

'You shall recollect that because of the requests of my client for the purposes of repayment of the deposits as well as the interest accrued thereon, you gave him following cheques towards his personal account as well as his HUF account.' In Para 10 of Notice, it has been further stated as follows:

'You are aware that the above mentioned principal amounts that were advanced to you by my client Mr. Priyakant Parikh from his personal a/c. as well as Karta of HUF. You are requested as to read TTC as Textile Traders Co-op. Bank and NNSB as Nutan Nagrik Sahakari Bank, and Retd. as date of return of the cheque. This indicates that you had given various cheques towards the return of principal amount to Mr. P.R. Parikh from your Textile Traders Co-op. Bank (described as TTC).' In Para 10 of Notice, it has been further stated as follows:

'Apart from the principal amount, you were requested to return, you were also requested to settle the balance of interest on the said huge amount of deposit towards which, you gave following cheques.' xxxx xxxx xxxx xxxx xxxx xxxx It has been further stated in Para 10 of Notice as follows:

'......you have accepted by issuance of above referred cheques (Negotiable Instruments), non-payment thereof attracts the provisions of Section 138 of the Negotiable Instruments Act requiring my client to issue a notice to you calling upon you to make the payment within a fortnight from the receipt of this notice.' 31.5 In Para 15 of Notice, it has been stated as follows: 'You are hereby informed that by issuing the cheques, you have admitted your legal liabilities to repay. The dishonour thereof generates a right to demand the same which is being demanded herewith.'

32. Above notice is addressed to petitioner also and wherever the word 'you' is stated in this notice, complainant wants to convey that, that notice was also issued to the present petitioner along with others and whatever transactions are referred to in the notice are the transactions entered into by the petitioner alongwith other deemed Directors.

33. In Criminal Misc. Application No. 4202 of 1999, the reply of present petitioner dated 21.11.1998 is produced by the complainant. She has denied that she was never partner of Nidhi Investment, and she has never taken any money from the complainant and she has never issued any cheque to the complainant. Thus mere denial is there in reply. The Trial Court will consider the averments made in the notice by reading this reply with it. In this reply, the petitioner has advanced her case that by issuing such type of notice, the complainant was bringing pressure on the petitioner alongwith other about deemed five Directors for making payments of dues due, from Nidhi Investment to the complainant.

34. Along with these two documents, now we will read the complaint also wherein the complainant has made averments as follows:

In Para 3, it has been stated as follows:

'The complainant stales that said Manoj Jagdishbhai and Pritiben Manojbhai had represented to the complainant through the good offices of Yogendra Jagdishbhai as well as their parents namely Jagdishbhai and Sulochanaben that Nidhi Investments handles the portfolios of shares and finances in the most successful way and the complainant being the relative should entrust both these aspects i.e. portfolio of shares as well as finances/deposits management to Nidhi Investment and the parents had orally guaranteed the safety and security of the same.' In Para 4, the complainant has given particulars of cheques given by him to NidhiInvestments.

In Para 5, it has been stated as follows:

'This would go to show that a large amount of money was advanced as deposits on various dates to the accused respondent (including present petitioner) who has represented to the complainant that all the members of the family are concerned with Nidhi Investment.' In Para 5-A, it has been stated as follows:

'It must be stated for and on behalf of the complainant that the accused herein (including petitioner) were paying back amount as well as interest to the complainant and the details thereof are as under'. Particulars of 12 cheques towards principal amount and 38 cheques towards interest are given.' In Para 6, it has been stated as follows:

'That in the reply, the accused has attempted to settle interest paid by him to the complainant as principal amount which also establishes intention of the accused (including the petitioner) to deceive the complainant by luring him to finance funds..........and the accused has agreed to pay the agreed rate of interest on the same because that would be a common procedure of the market......one of the cheques was issued by the accused (three accused) is the subject-matter of the present issue...........' In Para 7, it has been stated as follows:

'The accused now begs to submit that Nidhi Investment is a proprietary firm and none of the accused named in the cause title have any thing to do with Nidhi Investment. This stand of the accused Manoj Bhojnagarwala is highly unreasonable and unacceptable because said Manoj Bhojnagarwala has issued a cheque as Authorised signatory of Nidhi Investment.' In Para 9, it has been stated as follows:

'In all, 9 No. of cheques returned with the endorsement that the accused has failed to make the funds available for the clearance of the cheques. For each and every cheque the complainant, therefore, got issued distinct and separate notice calling upon the accused to comply with requirement of the Negotiable Instruments Act. Instead of promising to pay, the accused submitted false statement of the account and replied nothing in regard to the intention of payment.' In Para 11, it has been specifically pleaded as follows:

'That Nidhi Investment is a private firm,' In Para 13, it is stated as follows: 'That the accused has failed to arrange for the funds necessary for the clearance of the cheque.'

35. If we read above all the averments by giving a cumulative effect, it can safely be said that the offence under Section 138 of the Act has been committed by 'Company' i.e. accused No. 1 (Association of Individuals), and it has been committed with the consent and connivance of the present petitioner i.e. a deemed Director within the meaning of Clause (b) of Explanation below Section 141 of the Act. Thus, from the complaint, Notice and reply, it is crystal clear that the complainant's case falls under Section 141(2) of the Act. Though Mr. M.R. Barot has not argued on this point, this Court has independently and minutely examined the complaint as well as the documents produced with list at the time of lodging the complaint and after such examination, this Court is fully satisfied that the complainant's case falls under Section 141(2) of the Act. As discussed earlier, Mr. K.S. Nanavati, the learned Senior Advocate for the petitioner has vehemently argued that in view of absence of averments with regard to petitioner 'in charge of' and 'was responsible to the company for the conduct of the business of the company' in complaint, as well as statutory notice, complaint deserves to be quashed and set aside. His main thrust of the arguments was such that the case of the complainant falls under Section 141(1) of the Act. When this Court has independently examined the complaint and the documents produced with list at the time of lodging the complaint, this Court comes to a conclusion that case falls under Sub-section (2) of Section 141 of the Act. It is interesting to note that what is required to be averred for the Director as expected in Sub-section (1) of Section 141 of the Act is not necessary to be averred for case falling under Section 141(2) of the Act. The opening words of Sub-section (2) of Section 141 of the Act are very much important. They are as follows:

'Notwithstanding anything contained in Sub-section (1)'

Words 'Notwithstanding anything contained in Sub-section (1) do suggest that if case falls under Section 141(2) of the Act, requirements of Sub-section (1) are not at all necessary to be fulfilled by the complainant.

Sub-section (2) is to be considered independently without taking into consideration Sub-section (1). When this Court has found that case falls under Sub-section (2) of Section 141 of the Act, the requirements of 'in charge of and 'was responsible to the company for the conduct of the business of the company' are not at all necessary to be averred in the complainant, and, therefore, from the facts and circumstances of the case and by reading complaint as well as the documents produced with list by the complainant, it is crystal clear that prima facie case is made out by the complainant for issuance of summons under Section 204 of Cr.PC and this Court is of the view that the learned Magistrate has exercised his jurisdiction legally and properly by taking cognizance of offence and not the offender. In view of this, when legal position is clear that when Court finds that prima facie case is made out for issuance of summons, it can be said that there is no abuse of process of law and application under Section 482, Cr.PC cannot be quashed on the basis of arguments advanced by Mr. K.S. Nanavati the learned Senior Advocate for the petitioner, which are mainly on the non-fulfillment of requirements of ingredients stated in Sub-section (1) of Section 141 of the Act.

36. Mr. K.S. Nanavati has placed reliance on following authorities also in support of his arguments on other points :

(1) K.P.G. Nair v. Jindal Menthol India Ltd., Vol. 104, Company Cases 290. This authority pertains to Sub-section (1) of Section 141 of the Act. As discussed earlier, case of the complainant falls under Section 141(1) of the Act, and, therefore, this authority is not helpful to petitioner in this case.

(2) Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Ors., AIR 1983 SC 67. This authority cited in answer to arguments of Shri M.R. Barot that in case, if the complaint is quashed by this Court, then there should be some specific observation of this Court in judgment with regard to Section 319 of Cr.PC for impleading this present petitioner after the complainant leads evidence against her during the trial. At this stage, this question does not arise because in view of discussions made hereinabove, this Court is not going to quash the complaint. Still, however, the legal position is made clear by the Hon'ble Supreme Court in Paras 18 and 19 of this authority to meet with the requirements in answer to apprehension expressed by Shri Barot, and, therefore, this authority is also not helpful to the petitioner.

(3), Municipal Corporation of Delhi v. Purshotam Dass Jhunjunwala and Ors., (supra). In this case, legal position with regard to, Section 17 of the Prevention of Food Adulteration Act, 1954 is made clear. It has with regard to prosecution of Directors of Sugar Mill for manufacturing adulterated milk toffee and in complaint, averments were made giving complete detail of role played by the Directors and extent of liability. Complaint against accused could not be said to be vague and implicating the Directors. The High Court had in exercise of powers under Section 482, Cr.PC quashed the proceedings against the accused. The Hon'ble Supreme Court allowed the appeal filed by the complainant and set aside the order of the High Court. The Hon'ble Supreme Court has discussed Section 17 which is in pari materia with Section 141(1) of the Act. This authority will not be applicable to this present case.

(4) Girdhari Lal Gupta v. D.N. Mehta and Anr., (supra). In Para 6 of this authority, Hon'ble Supreme Court has explained as to what is meant by expression 'person in charge of and responsible for the conduct of the affairs of a company'. This authority will not be applicable because case of the complainant falls under Section 141(2) of the Act, and not under Section 141(1) of the Act.

(5) Sham Sundar and Ors., v. State of Haryana, (supra). In this case, Section 10(1) of the Essential Commodities Act which is practically in pari materia with Section 141(1) of the Act is discussed. In view of the fact that the averments made by the complainant in complainant as well as in notice which is a base of the complaint, the complainant has made out his case under Section 141(2) of the Act for issuance of the process, and, therefore, this authority will not be helpful to this case.

(6) Pepsi Food Ltd. and Anr., v. Special Judicial Magistrate and Ors., VI (1998) SLT 102=IV (1998) CCR 108 (SC)=AIR 1998 SC 128. This authority cited with regard to scope and ambit of Articles 226 and 227 of the Constitution of India and also under Section 482 of the Code. There cannot be any dispute with regard to legal position settled by the Hon'ble Supreme Court in this case. Looking to the facts of this case, the principles laid down in this authority will not be applicable because this Court has arrived at a conclusion which is on the basis of the principles laid down by the Hon'ble Supreme Court in other cases which have been referred to hereinabove, and, therefore, this authority will not be helpful to the present case.

(7) In case of G. Sagarsuri v. State of U.P., 2000 (2) SCC 636, it has been held that though the Magistrate trying a case has jurisdiction to discharge the accused at any stage of the trial, if he considers the charge to be groundless, but that does not mean that accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution of India. It is also held that to have the proceedings quashed against them, when no offence is being made out against them, still why they must suffer agony of criminal trial. There cannot be any dispute with regard to the legal position settled in this case.

During the course of arguments, Mr. Barol has put much emphasis on the ground that accused has right to submit his application for discharge from the case before the Trial Court, and when accused has such right, his application under Section 482, Cr.PC cannot be considered. Arguments of Mr. Barot have not been dealt with in view of this authority and, therefore, when this Court has not decided application under Section 482, Cr.PC on the ground that accused has right to submit application for discharge from the case in the Trial Court, this authority will not be useful to the petitioner.

(8) In case of Ashok Chaturvedi and Ors. v. Shitul H. Chanchani and Anr., AIR 1998 SC 2796, there was only an allegation made in the complaint that shares of the complainant have been transferred on forged signatures and there was no iota of material to indicate how all or any of the accused were involved in the alleged forgery. Statement of complainant as well as witnesses were not lending any support, and, therefore, Hon'ble Supreme Court held that order taking cognizance was not proper. In this case, Hon'ble Supreme Court quashed not only cognizance taken by the learned Magistrate of the offence as against seven appellants before it but also against some two officers of the Company who were not the appellants before the Hon'ble Supreme Court. There cannot be any dispute for the legal position settled in this case.

37. Rajesh Bajaj v. State NCT of Delhi and Ors., (supra). This authority is cited in support of arguments of Mr. K.S. Nanavati to the effect that for quashing of FIR, the information in the complainant must be so bereft of even the basic facts which are absolutely necessary for making out the offence. While examining the complaint in this case, this Court has taken into consideration the aforesaid legal position.

In this case, Hon' ble Supreme Court, criticising an approach of High Court, by observing that High Court seems to have adopted a strictly hypertechnical approach and sieved the complaint through a cullendar of finest gaizes for testing the ingredients under Section 415, IPC. Such an endeavour may be justified during trial, but certainly not during the stage of investigation. At any rate, it is too premature a stage for the High Court to step in and stall the investigation by declaring that it is a commercial transaction simplicitor wherein no semblance of criminal offence is involved.

38. Sunil Kumar v. Escorts Yamaha Motors Ltd. and Ors., 1999 (8) SCC 468. In this case, accused had given cheque to the complainant. Cheque was bounced. Complainant lodged FIR for offences punishable under Sections 420, 406 and 468, IPC alleging that accused by an Act of conspiracy committed criminal breach of trust by presenting for encashment blank cheques signed by the accused for the purpose other than that for which a cheque had been given to the complainant, and, therefore, causing to the complainant loss of certain amount. Apart from this fact, the said allegations do not make out offence of cheating and criminal breach of trust. There were attendant circumstances indicating that FIR was lodged to preempt the filing of complaint under Section 138 of the Negotiable Instruments Act against the accused. In such circumstances, the Hon'ble Supreme Court held that High Court was well within the jurisdiction to quash the FIR as amounting to abuse to process of Court.

39. During the course of arguments, without prejudice to the merits of the case, this Court had suggested both the parties to examine the possibility of remanding the complaint with certain directions to the complainant to lodge further better materials so as to enable the learned Magistrate to come to a right conclusion for taking a decision either under Section 203, Cr.PC or Section 204, Cr.PC. Mr. K.S. Nanavati, the learned Sr. Advocate for the petitioner submitted that if that recourse is taken by this Court, then the complaint will be inquired under Section 202, Cr.PC and in that circumstances, the petitioner will not have any chance for advancing her defence before the learned Magistrate who can take a decision either way under Section 203, Cr.PC or under Section 204, Cr.PC, He has submitted that the petitioner will not have any locus standi to appear before the learned Magistrate when the learned Magistrate will hold an inquiry under Section 202, Cr.PC in the matter of complaint and in support of that submission, he has cited an authority of Chandra Deo Singh v. Prakash Chandra Bose, alias Chabil Bose and Anr., AIR 1963 SC 1430. Looking to the legal position settled in this case, question does not arise for this Court to remand the complaint to the learned Magistrate for holding an inquiry under Section 202, Cr.PC. and, therefore, suggestion made by this Court requires to be withdrawn in view of the facts of the case, and accordingly suggestion is dropped by this Court.

40. In view of what is discussed hereinabove, in short the case of the complainant squarely falls under Section 141(2) read with Section 138 of the Negotiable Instruments Act. There are averments in the complaint for making out a prima facie case under Section 141(2) of the Act for taking cognizance by the learned Magistrate. The learned Magistrate has rightly taken the cognizance of an offence under Section 138 of the Act committed by the Company and, therefore, in no case, it can be said that by taking cognizance against the accused for the offence stated in the complaint, the learned Magistrate has abused the process of his Court, and, therefore, the applications under Section 482, Cr.PC are devoid of merits and the same require to be dismissed outright, on merits. Accordingly, 30 (thirty) Criminal Misc. Applications filed under Section 482, Cr.PC by the present petitioner i.e. accused No, 3 in respective complaints filed by the respective complainants are dismissed by this one common judgment, because as these 30 Criminal Misc. Applications are decided in a group as jointly requested by the learned Advocates for both the parties. Rule issued in each Criminal Misc. Application shall stand discharged. Interim relief granted earlier and which had been extended from time-to-time till this date in each case shall stand vacated forthwith. The learned Magistrate be informedof accordingly without any further delay.

Sd/-

(H.H. Mehta, J.)

Mr. R.S. Sanjanwala, learned Advocate for the petitioner in all matters requests this Court to continue interim relief granted earlier to move the higher forum. In view of the facts and circumstances of this present matters and in view of the legal position settled by this Hon'ble Court as well as the Apex Court, interim relief as prayed for is refused.

AnnexureIContinuation of CAV Judgment in CR.MR. No. 4188of 1999 and other 29 matters. Sr.No.

Cr. MA. No. u/s. 482 of Cr. PCbefore the High Court.

Criminal Case No. beore theTrial Court.

Complainant

Accused

Cheque No.

Accused No.2 Manoj B.Bhojnagar-wala signed the cheque as

Amount of cheque.

(Rs.)

1.

4188/99

3431/98

Shri Priyakant R. Parikh

1. Nidhi Investment (Firm).

050142

Proprietor

40,000.00

2, Mr. Munoj J. Bhojnagar wala.

23.10.1988

3. Mrs. Priti Manoj Bhojnagar-wala

2.

4189/99

3433/99

-do-

-do-

50131

-do-

11,00.000.00

14.10.1998

3.

4190/99

3434/98

-do-

-do-

50141

-do-

20,00.000.00

23.10.1998

4.

4191/99

3435/98

-do-

-do-

50138

-do-

60,000.00

23.10.1998

5.

4192/99

3436/98

-do-

-do-

50133

-do-

20.00,000.00

14.10.1998

6.

4193/99

3437/98

-do-

-do-

50137 23.10.1998

-do-

30,00,000.00

7.

4194/99

3438/98

-do-

-do-

5013.4 14.10.1998

-do-

40,000.00

8.

4195/99

3439/98

-do-

-do.

44715 20.09.1998

Authorised Person

25,00,000.00

9.

4196/99

3440/98

-do-

-do-

44705 01.09.1998

-do-

20,00,000.00

10.

4197/99

3442/98

-do-

-do-

5014330.10.1998

Proprietor

5,00.000.00

11.

4198/99

3443/98

-do-

-do-

44707 02.09.1998

Authorised Person

5,00,000.00

12.

4199/99

3444/98

-do-

-do-

45983 27.09.1998

-do-

60,000.00

13.

4200/99

3445/98

-do-

-do-

50144 30.10.1998

Proprietor

3,00,000.00

14.

4201/99

3449/98

Jayesh J. Purikh

-do-

52717

Authorised Person

1,00,000.00

15.

4202/99

3450/98

-do-

-do-

45977

-do-

1.00.000.00

16,

4203/99

3451/98

-do-

-do-

52730

-do-

1,00,000.00

17.

4204/99

3452/98

-do-

-do-

52716

-do-

50,00,000.00

IS.

4205/99

3453/98

-do-

-do-

52718

-do-

25,00,000.00

19.

4206/99

3454/98

-do-

-do-

52719

-do-

50,000.00

20.

4207/99

3455/98

-do-

-do-

52731

-do-

50.000.00

21.

4208/99

3456/98

-do-

-do-

52714

-do-

20,00,000.00

22.

4209/99

3457/98

-do-

-do-

52715

-do-

40,000.00

23.

4210/99

3458/98

Rajan Priyakant Parikh

-do-

50139 23.10.1998

Proprietary

5,00,000.00

24.

4211/99

3459/98

-do-

-do-

50140 23.10.1998

-do-

10.000.00

25.

4212/99

3460/98

RudhikaPriyakantParikh

-do-

45992 4.10.1998

Authorised Pereoti

10,000.00

26.

4213/99

3462/98

-do-

-do-

52720 30.10.1998

Proprietor

5,00,000.00

27.

4214/99

3461/98

-do-

-do-

50136 14.10.1998

Authorised Person

10,000.00

28.

4215/99

3463/98

-do-

-do-

50135 14.10.1998

Proprietor

5,00,000.00

29.

4216/99

3464/98

-do-

-do-

52721 30.10.1998

Authorised Person

10,000.00

30.

3969/99

3441/98

Priyakant R. Parikh

-do-

50132 14.10.1998

-do-

22,000.00