Delhi District Court
Dr. Vijay Mallya vs M/S. Delhi International Airport Pvt. ... on 2 September, 2014
IN THE COURT OF SH. REETESH SINGH, ASJ-02/FTC
NEW DELHI DISTRICT PATIALA HOUSE COURTS, DELHI
Crl. Revision No. 43/2014
I.D. No 02403R0079782014
Crl. Revision No. 44/2014
I.D. No 02403R0079822014
Crl. Revision No. 45/2014
I.D. No 02403R0079792014
Crl. Revision No. 46/2014
I.D. No 02403R0079812014
Dr. Vijay Mallya,
UB Tower, UB City,
Vital Mallya Road, Bangalore-560 001.
......Petitioner
Versus
M/s. Delhi International Airport Pvt. Ltd.
Having its registered office at
New Udaan Bhawan,
Opposite T3, IGI Airport,
New Delhi - 110 037 ......... Respondent
ORDER
1. By this common order, I shall decide the above mentioned four revision petitions preferred by the petitioner against the impugned orders dated 13.01.2014 passed by the Ld. Trial Court in CC Nos. 261/1, 262/1, 263/1 and 272/1.
2. Brief facts leading to the filing of these petitions are that the respondent / complainant filed four complaints under Section 138 of the Negotiable Instruments Act 1881 (herein after referred to as the NI Act) before the Trial Court. While complaints CC Nos. 261/1, 262/1 and CR No. 43/14, CR No.44/14, CR No.45/14 and CR No. 46/14 Dr. Vijay Mallya vs. Delhi International Airport Pvt. Ltd. 1/21 263/1 were filed on 05.06.2012, CC No. 272/1 was filed on 08.06.2012. On the date of filing of all these complaints, the complainant had arraigned five accused in all the complaints with M/s. Kingfisher Airlines Ltd. being arrayed as accused no. 1, and Mr. Sanjay Aggarwal (CEO), Mr. A. Raghunathan (CFO), Mr. Inder Singh (Authorised Signatory) and Mr. G. Visweswaran (Authorised Signatory) were arrayed as accused nos. 2 to 5 respectively.
3. After recording of pre- summoning evidence, the Ld. Trial Court issued summons to all the accused persons. They appeared before the Trial Court and by order dated 12.08.2014 notice under Section 251 of the Code of Criminal Procedure (Cr.P.C.) was framed against the accused to which they pleaded not guilty. Matter was fixed by the Trial Court for cross-examination of the witnesses of the complainant. However, before cross-examination of the witnesses of the complainant could commence, the complainant on 20.12.2013 filed an application under Section 319 of the Cr. P.C. in each of the four complaints praying to array Mr. Vijay Mallya, Chairman and Managing Director of the accused no. 1 company as an accused. After hearing the counsel for the parties, the Ld. Trial Court by the impugned order dated 13.01.2014 allowed the said applications and directed issuance of summons to the petitioner.
4. Aggrieved by the impugned orders dated 13.01.2014, the petitioner / accused Dr. Vijay Mallya has preferred these revision petitions under Section 397 read with Section 401 of the Code of Criminal Procedure (hereinafter referred to as Cr. P.C).
5. Sh. Vikas Pahwa, Ld. Senior Counsel on behalf of the CR No. 43/14, CR No.44/14, CR No.45/14 and CR No. 46/14 Dr. Vijay Mallya vs. Delhi International Airport Pvt. Ltd. 2/21 petitioner has argued that the Ld. Trial Court failed to appreciate that the NI Act lays down a special procedure in respect of offences arising out of dishonour of cheques due to insufficiency of funds. He submitted that Section 4 (1) of the Cr. P.C provides that all offences under the Indian Penal Code are to be investigated, inquired into and tried in accordance with the provisions of the code but Section 4 (2) specifically excluded the application of the Code in respect of the offences for which any other enactment regulated the manner or place of investigating, enquiring into, trying or otherwise dealing with such offences. He submitted that Sections 138, 141 and 142 of the N.I. Act lay down a special procedure in respect of cases pertaining to offences under Section 138 and to that extent, the provisions of the Code of Criminal Procedure stood excluded.
6. He submitted that Section 138 (b) of the N.I. Act mandatorily requires issuance of a notice to the drawer of a cheque and Section 141 gave an opportunity to the drawer to respond to such notice. He submitted that if a person is summoned as an accused under the provisions of Section 319 Cr. P.C without issuance of the mandatory notice as contemplated under Section 138 (b) of the N.I. Act, he would not have an opportunity to respond to the same. Thus the procedure laid down under the special statute i.e. the N.I. Act would stand violated and to that extent the provisions of Section 319 Cr. P.C. would not apply.
7. Counsel for the petitioner further submitted that no person could be summoned as an accused in a complaint under Section 138 of the N.I. Act unless and until a notice under Section 138 (b) had been served upon him. Counsel for the petitioner submitted that even though he did not dispute that the petitioner is the Chief Managing Director of CR No. 43/14, CR No.44/14, CR No.45/14 and CR No. 46/14 Dr. Vijay Mallya vs. Delhi International Airport Pvt. Ltd. 3/21 the accused no. 1 company, a separate notice was required to be issued qua the CMD. He submitted that issuance of a notice under Section 138 (b) of the N.I. Act to the company itself was not sufficient and that such notice ought to have been addressed to the CMD as well. He submitted that the purpose of issuance of a notice was to afford an opportunity to an accused to respond to the same. In the present matter no notice as such was ever issued to the petitioner. Even though notice had been issued to the accused no. 1 company, the same had not been separately addressed to the CMD / petitioner.
8. Counsel for the petitioner submitted that the Ld. Trial Court has placed reliance on the judgment of the Hon'ble High Court of Delhi in the case of Ranjit Tiwari vs. Narender Nayyar reported in (2012) 191 DLT 318, which itself had placed reliance on a judgment of a Single Bench of the Madras High Court in the case of Sarvaraya Textiles Limited vs. Integrated Finance Limited, (2001) 107 Comp Cas 256 (Madras). He submitted that the said judgment of the Ld. Single Judge of the Madras High Court was overruled by a Division Bench of the Madras High Court in the case of B. Raman & Ors. vs. Shasun Chemicals and Drugs Ltd. reported in 2006 (4) CTC 529. Ld. Sr. Counsel argued that the judgment in the case of B. Raman (supra) was rendered by the Division Bench on 29.08.2006 whereas the judgment of the Single Judge in the case of Sarvaraya Textiles Ltd. (supra) was cited before the Hon'ble High Court of Delhi in the case of Ranjit Tiwari (supra) on 02.07.2012. He submitted that as on 02.07.2012 the judgment in the case of Sarvaraya Textiles had already been overruled and was no longer good law and thus the judgment in the case of Ranjit Tiwari (supra) had been obtained by fraud. He submitted that the said judgment was per incuriam and could not be relied upon and for this CR No. 43/14, CR No.44/14, CR No.45/14 and CR No. 46/14 Dr. Vijay Mallya vs. Delhi International Airport Pvt. Ltd. 4/21 purpose he relied upon on the following judgments:-
(a) State of Orissa vs. Nilinikanta Muduli, (2004) 7 SCC 19
(b) Rattiram vs. State of Madhya Pradesh, (2012) 4 SCC 516
(c) State of Bihar vs. Kalika Duer & Ors., (2003) 5 SCC 448
(d) State of Orissa vs. Balaram Sahu & Anr. (2003) 1 SCC 250
9. Counsel for the petitioner then submitted that Ld. Trial Court failed to appreciate that Section 319 of the Cr. P.C itself provides that resort to the same could be had only in the course of any 'inquiry' or 'trial' of an offence when it appeared from the evidence that any person not being an accused had committed any offence. He submitted that till the time evidence is recorded in a trial arising out of the complaint, it was not open to the Ld. Magistrate to invoke the said provision. He submitted that admittedly the matter was at the stage of recording of evidence after framing of notice under Section 251 of the Cr. P.C. and no fresh evidence had come on the record of the Ld. Trial Court at that stage for it to form an opinion to the effect that the petitioner had also committed the offence complained of. He submitted that power under Section 319 Cr. P.C. could not be exercised by the Ld. Trial Court on the basis of averments made in an application under that Section and it was only when evidence is recorded by examination of witnesses that the provisions of Section 319 of the Cr. P.C. could have been resorted to.
10. In addition to oral submissions, the petitioner has filed written arguments as well. The only additional submission in his written arguments is that as an alternate to this court deciding the questions of law raised by the petitioner, this court may send a reference on the same to the Hon'ble High Court under Section 395 (2) of the Cr. P.C. CR No. 43/14, CR No.44/14, CR No.45/14 and CR No. 46/14 Dr. Vijay Mallya vs. Delhi International Airport Pvt. Ltd. 5/21 and await the outcome of the same.
11. On the other hand, Ld. Counsel for the respondent / complainant supported the impugned order and submitted that the same does not call for any interference. He submitted that the judgment of the Hon'ble High Court in the case of Ranjit Tiwari (supra) was not only based on the case of Sarvaraya Textiles Ltd., but was also on the independent findings of the Hon'ble High Court in respect of the provisions of Section 141 (1) and (2) of the N.I. Act. He submitted that the questions raised by the Ld. Counsel for the petitioner in the present matter have already been dealt with and rejected by the Hon'ble High Court in the case of Vijay Kumar Agarwal vs. United Phosphorus Ltd. reported in (2011) 184 DLT 247. He submitted that the judgment of the Hon'ble High Court in the case of Vijay Kumar Agarwal (Supra) is based on similar facts clinches the issue.
12. He further submitted that in the case of Sarvaraya Textiles Ltd., the Ld. Single Judge of the Hon'ble High Court of Madras had held that a notice issued to a company which is the principal offendor is notice to all the persons coming under the purview of Section 141 (1), and (2) of the NI Act and merely because individual notice had not been served on a Director, the complaint would not be rendered as not maintainable qua such Director. He submitted that the Division Bench of the High Court of Madras in the case of B. Raman (supra) had held that issuance of a statutory notice to a Director of a company who is sought to be prosecuted was mandatory and that a distinction had been drawn in respect of an accused who is a CMD or MD of a company in respect of whom it was held that no separate notice was required to be sent. He submitted that Section 141 (1) of the N.I. Act provided that CR No. 43/14, CR No.44/14, CR No.45/14 and CR No. 46/14 Dr. Vijay Mallya vs. Delhi International Airport Pvt. Ltd. 6/21 every person who at the time of the offence was incharge of and responsible to the company for conduct of it business is deemed to be guilty of the offence. He submitted that a CMD, such as the present petitioner by very nomenclature of his designation is incharge of and responsible to the company for conduct of its business and is deemed to be guilty of the offence. For this purpose he relied upon the judgment of the Hon'ble Supreme Court in the case of SMS Pharmaceuticals Ltd. vs. Neeta Bhalla reported in 123 (2005) DLT 275 (SC).
13. Counsel for the respondent lastly argued that in the case of M/s. Chiteswar Steel Pvt. Ltd. vs. UOI reported in Manu DC 4978 2012 it had been held that a judgment of a High Court is binding on all courts which are subordinate to it. He submitted that the judgment of the Hon'ble High Court of Delhi in the case of Ranjit Tiwari (Supra) and Vijay Kr. Agarwal (Supra) having been rendered by the Hon'ble High Court of Delhi would be binding on this Court and even if any other High Court had taken a contrary view, it was not open for this Court to place any reliance on the same.
14. I have heard the Counsel for the parties and have perused the record of the case.
15. The first submission of the counsel for the petitioner is that in view of the special procedure provided under Sections 138 to 142 of the NI Act, the provisions of 319 Cr.P.C would not apply to the extent it denied the accused / petitioner a notice under Section 138(b) and an opportunity to respond to the same.
16. Section 142 of the NI Act makes special provisions regarding CR No. 43/14, CR No.44/14, CR No.45/14 and CR No. 46/14 Dr. Vijay Mallya vs. Delhi International Airport Pvt. Ltd. 7/21 the manner in which a Court is required to take cognizance of an offence punishable under Section 138 of the Act. Section 143 of the NI Act lays down that notwithstanding anything contained in the Cr.P.C, all offences under Chapter XVII of the NI Act would be tried by a Judicial Magistrate of the First Class or by a Metropolitan Magistrate and the provisions of Section 262 to 265 of the Cr.P.C would apply to such trials as far as may be. Section 144 of the NI Act makes special provisions regarding mode of service of summons to an accused or a witness. Section 145 makes provisions for reception of evidence of the complainant on affidavit. Section 147 provides that offences punishable under the NI Act are compoundable notwithstanding anything contained in the Cr.P.C.
17. Thus Sections 142 to 147 of the NI Act lay down a special procedure for trial of offences under Section 138 of the NI Act and to that extent, the provisions of the Cr.P.C stand excluded. The legislature consciously laid down a special procedure under Sections 142 to 147 of the NI Act for the purposes of speeding up the trial of offences under Section 138 of N.I. Act as held by the Hon'ble Supreme Court in the case of M/s. Mandvi Co-op Bank Ltd. vs. Nimesh B. Thakore reported in JT 2010 (1) SC 259. In the said judgment, although in a different context, the Hon'ble Supreme Court further observed that the provisions of Sections 142 to 147 were procedural in nature and did not give rise to any substantive right to the accused.
18. In the opinion of this Court, had the intention of the legislature been to exclude the provisions of 319 of Cr.P.C in respect of offences under Section 138 of the NI Act unless and until a notice under Section 138 (b) was served upon the accused, the legislature would have CR No. 43/14, CR No.44/14, CR No.45/14 and CR No. 46/14 Dr. Vijay Mallya vs. Delhi International Airport Pvt. Ltd. 8/21 provided so. In the absence of any such specific provision under the NI Act excluding the applicability of Section 319 Cr.P.C, it cannot be said that an accused cannot be summoned by a Court under Section 319 Cr.P.C without service of any notice under Section 138(b).
19. Counsel for the petitioner had submitted that without issuance of notice under section 138 (b) of the N.I.Act, the petitioner could not have been summoned. He had submitted that even though the petitioner was the CMD of the accused company, notice to the company without the same being addressed separately to the petitioner was insufficient.
20. Section 138 of the N.I. Act makes it mandatory that a notice is to be issued to the drawer of the cheque. A company is a juristic person and for the purposes of section 138, the company would be the drawer of the cheque. However, as far as prosecution of the company for an offence under Section 138 of the N.I. Act is concerned, the same would be the persons described in section 141 of the Act. Hence, from a plain reading of Section 138 read with section 141 of the N.I. Act, it is clear that a notice under Section 138 has to be issued to the drawer of the cheque which is the company, but prosecution of the company is to be carried out in the manner as prescribed under section 141. The N.I. Act does not contemplate issuance of any separate notice to the persons described in section 141 of the Act. Hence, notice issued to the accused company was sufficient and no separate notice was required to be issued individually to the persons mentioned in section 141 of the Act.
21. Further, Section 141 (1) of the act provides that every person who was in charge of and responsible to the company for its business CR No. 43/14, CR No.44/14, CR No.45/14 and CR No. 46/14 Dr. Vijay Mallya vs. Delhi International Airport Pvt. Ltd. 9/21 shall be deemed to be guilty of the offence. In the case of SMS Pharmaceuticals Ltd. (Supra), the Hon'ble Supreme Court was pleased to hold that persons holding positions of Managing Director or Joint Managing Director by virtue of their very designation are in charge of a company and responsible for the conduct of the business of the company. Such persons in order to escape liability would have to bring their case within the proviso to section 141 (1) and will have to prove that when the offence was committed, they had no knowledge of the offence or that they exercised due diligence to prevent the commission of the offence.
22. In the present case admittedly the petitioner is the CMD of the accused company and hence, the deeming provision of Section 141 (1) of the N.I. Act stands attracted in full force qua him. He would be deemed guilty of the offence alleged to have been committed by his company and in order to come out of the same, he will have to prove that he was not aware of the transactions which resulted in the offence or that he had taken due diligence to prevent commission of the same. In these circumstances, once a notice under Section 138 (b) has been served upon the accused company, which is the drawer of the cheque, the petitioner being its CMD cannot contend that a notice should have been separately addressed to him.
23. Submission had been made that the judgment in the case of Ranjit Tiwari (Supra) was rendered per incuriam. There is no dispute that the judgment in the case of Sarvariya Textiles had been set aside by a Division Bench in the case of B. Raman. However, in the opinion of this court the judgment of the Hon'ble High Court in the case of Ranjit Tiwari was based also on an independent consideration of the CR No. 43/14, CR No.44/14, CR No.45/14 and CR No. 46/14 Dr. Vijay Mallya vs. Delhi International Airport Pvt. Ltd. 10/21 provisions of Sections 141 (1) & (2) of the N.I. Act, which is evident from the contents of paras 14 to 18 of the said judgment, which read as under:
"14. The law has been settled in the case of Anil Hada (supra), way back in 1999 by the Supreme Court holding that though the company itself is not prosecuted, the persons mentioned in section 141(1) and (2) become liable if a finding is given that such company has in fact committed the offence. But the only course open to the office bearers of the company is that they can adduce rebuttal evidence to establish that the company did not issue the cheque towards any antecedent liability. The offender in Section 138 of N.I. Act is the drawer of the cheque. He alone would have been the offender there under if the Act do not contain other provisions. It is because of Section 141 of the Act that penal liability under Section 138 is cast on other persons connected with the company.
15. Normally an offence can be committed by human beings who are natural persons and such offence can be tried according to the procedure established by law; but there are offences when can be attributed to juristic persons also and if the drawer of the cheque happens to be a juristic person like a body corporate, it can be prosecuted for the offence punishable under Section 138 of the Act.
16. The principal offender in each cases is only the body corporate and it is a juristic person and when the company is the drawer of the cheque, such company is the principal offender and the remaining persons are made offenders by virtue of the legal fiction created by the legislature as per Section 141.
17. According to Section 141(1), vicarious liability is attributed to the persons mentioned therein for the offence committed by the company, on the very same analogy notice served on the company amounts to serving of notice on all the persons as found in Section 141 of N.I. Act. A person who was in charge of the company and was responsible to the company for the conduct of the business of the company alone can be prosecuted, while so, such a person cannot deny CR No. 43/14, CR No.44/14, CR No.45/14 and CR No. 46/14 Dr. Vijay Mallya vs. Delhi International Airport Pvt. Ltd. 11/21 knowledge about the service of notice to the company. Only in that view of the matter vicarious liability is cast upon those persons and that is why no notice to them is contemplated.
18. The same view has been taken by this Court in the case of Jain Associates (supra). Therefore, in view of the legal position discussed above, the petitioner being the Managing Director of the company is responsible for the act, commission and omission of the company. Therefore, I find no discrepancy in the order passed by the learned trial court. I concur with the same."
24. In view of the observations of the Hon'ble High Court as reproduced above, it cannot be said that the judgment in the case of Ranjit Tiwari cannot be relied upon.
25. Counsel for the petitioner had submitted that the provisions of Section 319 of the Cr. P.C. could not be invoked on the contents of an application but only when evidence is recorded. The Hon'ble Supreme Court in the case of Hardeep Singh vs. State of Punjab & Ors. reported in (2014) 3 SCC 92 (Constitution Bench) was pleased to consider the scope and extent of powers of courts to arraign any person as an accused during the course of inquiry or trial contemplated under Section 319 Cr. P.C. The following questions were framed by the Hon'ble Supreme Court for consideration:-
" 6. On the consideration of the submissions raised and in view of what has been noted above, the fol- lowing questions are to be answered by this Bench:
6.1. (i) What is the stage at which power under Sec- tion 319 CrPC can be exercised?
6.2. (ii) Whether the word "evidence" used in Section 319(1) CrPC could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?
CR No. 43/14, CR No.44/14, CR No.45/14 and CR No. 46/14 Dr. Vijay Mallya vs. Delhi International Airport Pvt. Ltd. 12/21 6.3. (iii) Whether the word "evidence" used in Section 319(1) CrPC has been used in a comprehensive sense and includes the evidence collected during in- vestigation or the word "evidence" is limited to the evidence recorded during trial?
6.4. (iv) What is the nature of the satisfaction required to invoke the power under Section 319 CrPC to ar-
raign an accused? Whether the power under Section 319(1) CrPC can be exercised only if the court is sat- isfied that the accused summoned will in all likelihood be convicted?
6.5. (v) Does the power under Section 319 CrPC ex-
tend to persons not named in the FIR or named in the FIR but not charged or who have been discharged?"
26. While dealing with the first question, the Hon'ble Supreme Court held that the word "inquiry" and "trial" were consciously used separately by the legislature while framing Section 319 Cr. P.C. The stage of inquiry did not contemplate any evidence in its strict legal sense, since the stage for evidence had not been arrived at. The only material that the court has before it was that collected by the prosecution and at that stage the court could apply its mind to find out whether a person who can be an accused had been erroneously omitted or has been deliberately excluded by the prosecution agencies. This was to ensure that the investigating and prosecuting agencies had acted fairly in bringing before the court those persons, who deserve to be tried and to prevent any person from for being deliberately shielded when they ought to have been tried. This was necessary to usher faith in the judicial system and the provisions of Section 319 Cr. P.C empowered the court to exercise said power even at the stage of inquiry.
27. It was further held that other than the stage of inquiry, the court can exercise power under Section 319 Cr. P.C only after trial CR No. 43/14, CR No.44/14, CR No.45/14 and CR No. 46/14 Dr. Vijay Mallya vs. Delhi International Airport Pvt. Ltd. 13/21 proceeds and with the recording of evidence. While rendering such findings the Hon'ble Supreme Court in para 56 of its judgment also considered the import of Section 319 Cr. P.C in respect of provisions of section 200, 201, 202 etc. of the Cr. P.C applicable in the complaint cases and observed as under:-
"56. There is yet another set of provisions which form part of inquiry relevant for the purposes of Section 319 CrPC i.e. provisions of Sections 200, 201, 202, etc. CrPC applic- able in the case of complaint cases. As has been dis- cussed herein, evidence means evidence adduced before the court. Complaint case is a distinct category of criminal trial where some sort of evidence in the strict legal sense of Section 3 of the Evidence Act 1872 (hereinafter referred to as "the Evidence Act") comes before the court. There does not seem to be any restriction in the provisions of Section 319 CrPC so as to preclude such evidence as coming before the court in complaint cases even before charges have been framed or the process has been is- sued. But at that stage as there is no accused before the court, such evidence can be used only to corroborate the evidence recorded during the trial (sic or) for the purpose of Section 319 CrPC, if so required. What is essential for the purpose of the section is that there should appear some evidence against a person not proceeded against and the stage of the proceedings is irrelevant. Where the complainant is circumspect in proceeding against several persons, but the court is of the opin- ion that there appears to be some evidence pointing to the complicity of some other persons as well, Section 319 CrPC acts as an empowering provision enabling the court/Magistrate to initiate proceedings against such other persons. The purpose of Section 319 CrPC is to do complete justice and to ensure that persons who ought to have been tried as well are also tried. Therefore, there does not appear to be any difficulty in in- voking powers of Section 319 CrPC at the stage of trial in a complaint case when the evidence of the complainant as well as his witnesses are being recorded."
(Emphasis supplied) CR No. 43/14, CR No.44/14, CR No.45/14 and CR No. 46/14 Dr. Vijay Mallya vs. Delhi International Airport Pvt. Ltd. 14/21
28. The issue of applicability of section 319 Cr. P.C to complaint cases thus stands settled by the above observations of the Hon'ble Supreme Court in the case of Hardeep Singh (supra). The Hon'ble Supreme Court held that there was no restriction in Section 319 Cr.P.C as to preclude such evidence as coming before the court in complaint cases even before charges had been framed or the process had been issued. It was held what was essential is that there should appear some evidence against a person not proceeded against and the stage of the proceedings was irrelevant. It was held that where the complainant is circumspect in proceeding against several sections, but the court was of the opinion that there appears to be some evidence pointing to the complicity of some other persons as well, Section 319 Cr. P.C acted as an empowering provision enabling the court/ Magistrate to initiate the proceedings against such persons. It was specifically held that the purpose of section 319 Cr. P.C was to do complete justice and to ensure that persons who ought to had been tried as well are also tried.
29. The Hon'ble Supreme Court specifically held where the complainant had not proceeded against some persons but there was some evidence pointing to complicity of others, section 319 Cr. P.C was an enabling provision to the Court to summon such person. In the present case, admittedly, the complainant did not arraign the petitioner as an accused even though he is the CMD of the accused company and fell in the category of persons who would be deemed to be guilty of the offence committed by the company. What the Ld. Trial Court has done is exactly what was contemplated by the Hon'ble Supreme Court in the case of Hardeep Singh (supra), i.e. even if the complainant has been circumspect in arraigning an accused although he has committed the offence, Section 319 Cr. P.C enabled the court to issue process against CR No. 43/14, CR No.44/14, CR No.45/14 and CR No. 46/14 Dr. Vijay Mallya vs. Delhi International Airport Pvt. Ltd. 15/21 such person.
30. In the case of Hardeep Singh, the Hon'ble Supreme was further pleased to consider the word "evidence" as used in Section 319 Cr. P.C. After discussing the law on subject, the Hon'ble Supreme Court held as under:
"83. It is, therefore, not any material that can be util- ised, rather it is that material after cognizance is taken by a court, that is available to it while making an in- quiry into or trying an offence, that the court can utilise or take into consideration for supporting reasons to summon any person on the basis of evidence adduced before the court, who may be on the basis of such ma- terial, treated to be an accomplice in the commission of the offence. The inference that can be drawn is that material which is not exactly evidence recorded before the court, but is a material collected by the court, can be utilised to corroborate evidence already recorded for the purpose of summoning any other person, other than the accused. This would harmonise such material with the word "evidence" as material that would be supportive in nature to facilitate the exposition of any other accomplice whose complicity in the offence may have either been suppressed or escaped the notice of the court.
84. The word "evidence" therefore has to be under- stood in its wider sense both at the stage of trial and, as discussed earlier, even at the stage of inquiry, as used under Section 319 CrPC. The court, therefore, should be understood to have the power to proceed against any person after summoning him on the basis of any such material as brought forth before it. The duty and obligation of the court becomes more oner- ous to invoke such powers cautiously on such material after evidence has been led during trial.
85. In view of the discussion made and the conclusion drawn hereinabove, the answer to the aforesaid ques- tion posed is that apart from evidence recorded during trial, any material that has been received by the court CR No. 43/14, CR No.44/14, CR No.45/14 and CR No. 46/14 Dr. Vijay Mallya vs. Delhi International Airport Pvt. Ltd. 16/21 after cognizance is taken and before the trial com- mences, can be utilised only for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 CrPC. The "evidence" is thus, limited to the evidence recorded during trial."
31. It was held that that it is that material available to the Court while making an inquiry into or trying an offence after cognizance is taken which the court can utilize to take into consideration for supporting reasons to summon any person on the evidence educed before it. It was held that the word "evidence" has to be understood in its wider sense at the stage of trial as well as at the stage inquiry and that apart from any evidence recorded during the trial, any evidence that has been received by the court after cognizance is taken and before the trial commences can be utilized in corroboration and to support the evidence recorded by the court to invoke by the power under Section 319 Cr. P.C.
32. What has been held by the Hon'ble Supreme Court is that the word "evidence" which is used in section 319 Cr. P.C is not to be construed strictly and any material which is available before the court which could corroborate that an accused has committed an but is not arraigned could be relied upon to summon such person to face trial. As far as complaint cases are concerned the Hon'ble Supreme Court has observed that stage of proceedings were irrelevant and it was the satisfaction of the court which was of importance and which is to be gathered from the reasons recorded by it while summoning any accused under section 319 Cr.P.C.
33. As observed above, the CMD is one of the categories of persons in a company who is deemed to be guilty of such offences The CR No. 43/14, CR No.44/14, CR No.45/14 and CR No. 46/14 Dr. Vijay Mallya vs. Delhi International Airport Pvt. Ltd. 17/21 complainant for reasons best known to it did not arraign the petitioner as an accused but chose to move an application under Section 319 Cr. P.C after framing of notice under Section 251 Cr.P.C. No dispute was raised before the Ld. Trial Court or even before this Court regarding the status of the petitioner i.e. he being the CMD of the petitioner company. This was therefore sufficient material for the Ld. Trial Court to have summoned the petitioner.
34. Question was raised whether averments in an application under Section 319 Cr. P.C would be "evidence" for the purpose of section 319 Cr.P.C. As held in the case of Hardeep Singh (supra), the word "evidence" is to be used in a wider sense and in the facts and circumstances of the present case, the contents of the application coupled with the admission of the accused company itself about the status of the accused was sufficient material for exercise of power under Section 319 Cr.P.C.
35. Counsel for the petitioner had relied on the judgment of the Hon'ble Supreme Court in the case of Shakti Travel & Tours vs. State of Bihar reported in 2002 (9) SCC 415. In the said case the Hon'ble Supreme Court was pleased to quash the complaint on the ground that there was no averment made by the complainant that the notice under Section 138 of the N.I. Act had been served on the accused. The facts of this case are different.
36. Counsel for the petitioner had relied on the judgment of the Hon'ble Supreme Court in the case of Rajneesh Aggarwal vs. Amit Bhalla 2001 (1) SCC 631. In the said judgment Hon'ble Supreme Court had held that the issuance of a notice under Section 138 was to afford CR No. 43/14, CR No.44/14, CR No.45/14 and CR No. 46/14 Dr. Vijay Mallya vs. Delhi International Airport Pvt. Ltd. 18/21 an opportunity to the drawer to make payment to avoid initiation of criminal proceedings. It was further held that notice of dishonor of cheque a served on a Director of a company amounted to notice to the drawer which was a company. In the present case there is no dispute that notice has been served upon the accused company and with the petitioner being its CMD, no separate notice in this regard was required to be issued to him. Moreover a converse application of the ratio laid down in the case of Rajneesh Aggarwal would be that a notice to the company would be a notice to all its Directors.
37. Counsel for the petitioner had relied upon the judgment of the Hon'ble High Court of Delhi in the case of G.D. Goyal vs. State, Crl. M.C. No. 4574/2005. Facts of the said case reveal that the petitioner before the Hon'ble High Court had not been arraigned as an accused in the complaint but in the affidavit by way of evidence, he was named as one of the other Directors who were responsible for day to day affairs of the company. The Hon'ble High Court placing reliance on the case of SMS Pharmaceuticals Ltd. (Supra) held that in the absence of any detail regarding role of the petitioner, the trial court could not have summoned him. In the present case the petitioner is not a Director simplicitor but is the CMD of the accused company and hence the judgment in the case of G.D. Goyal will not come to his aid.
38. Counsel for the petitioner had also relied upon judgments of the Hon'ble High Court of Bombay to support his contention that unless and until a specific notice was issued, petitioner could not be summoned. Counsel for the respondent on the other hand had relied upon the judgment of the Hon'ble High Court in the case of Vijay Kumar Aggarwal (Supra). In the case of Vijay Kr. Aggarwal, the complainant CR No. 43/14, CR No.44/14, CR No.45/14 and CR No. 46/14 Dr. Vijay Mallya vs. Delhi International Airport Pvt. Ltd. 19/21 had filed a complaint against M/s Vijay Remedies Ltd. through its director Kamal Goel and notice under Section 251 Cr. P.C was framed on 07.07.2000. On that date an application was filed by the complainant under section 319 Cr. P.C to summon Vijay Kr. Aggarwal and two other persons on which summons were issued. Contention made before the Hon'ble High Court was that in the absence of any demand notice have been sent to the petitioner, he could not have been summoned and secondly that resort to section 319 Cr. P.C could be taken only during the stage of trial. The Hon'ble High Court negatived both the said contentions and held in paras 27 and 30 as under:
"27. In my opinion, power under Section 319 of the Code can be exercised by the Court suo motto or on an application by someone including accused already before it. If the Court is satisfied that any person other than the accused has committed an offence, he is to be tried together with the accused. The power is discretionary and such discretion must be exercised judiciously having regards to the facts and circumstances of the case. Indisputably, it is an extra ordinary power, which is conferred on the Court, and should be used very sparingly only if compelling reasons exists for taking actions against the persons, against whom the action has not been taken earlier.
28. Though, the petitioner was not made party specifically in the complaint filed under Section 138 of the Negotiable Instruments Act, but keeping the aforesaid Full Bench judgment of Supreme Court, the Managing Director is responsible for the day to day affairs of the company.
29. Therefore, as discussed above, I am of the opinion that there is no infirmity in the impugned order passed by the learned Trial Court, therefore, I am not inclined to interfere with the same.
30. Criminal M.C. 1085/2007 is dismissed on the above terms."
CR No. 43/14, CR No.44/14, CR No.45/14 and CR No. 46/14 Dr. Vijay Mallya vs. Delhi International Airport Pvt. Ltd. 20/21
39. As apparent, the Hon'ble High Court has observed in the case of Vijay Kr. Aggarwal (Supra) that issuance of a notice under Section 138 of the NI Act was not a precondition to exercise of power under Section 319 Cr.P.C. and that resort to the said provision could be had on an application itself. In view of the ratio laid down in the case of M/s. Chiteswar Steel Pvt. Ltd. vs. UOI (Supra) this Court is bound by the law laid down by the Hon'ble High Court of Delhi and even if there are judgments of the Hon'ble High Court of Bombay to the contrary, the same are immaterial for this Court.
40. The Counsel for the petitioner had lastly submitted that as an alternate to this court deciding the questions of law raised in the petition, this court may send a reference on the same to the Hon'ble High Court under Section 395 (2) of the Cr. P.C. In view of the findings rendered above, I am not inclined to send any reference as suggested by the petitioner.
41. Hence, for the reasons recorded above, I do not find any infirmity in the impugned order dated 13.01.2014 passed by the Ld. Trial Court in CC Nos. 261/1, 262/1, 263/1 and 272/1. Accordingly, all the four revision petitions are dismissed.
42. TCR alongwith copy of this order be sent back to the concerned Ld. Trial Court. Revision file be consigned to record room.
Announced in the open court (REETESH SINGH)
on 2nd September, 2014 ASJ-02/FTC, PHC/NDD
02.09.2014
CR No. 43/14, CR No.44/14, CR No.45/14 and CR No. 46/14 Dr. Vijay Mallya vs. Delhi International Airport Pvt. Ltd. 21/21