Madras High Court
G.A. Vadivelu And Anr. vs Shenbagarajan on 27 April, 2000
JUDGMENT
S. Thangaraj J.
1. The petitioners, who are accused Nos. 2 and 5 in C.C. Nos. 676 and 677 of 1998, on the file of the Judicial Magistrate, Periyakulam, have filed these two criminal original petitions under Section 482 of the Criminal Procedure Code, 1973, to quash the said proceedings;
2. The first accused company, M/s. Gowri Spinning Mills (P) Ltd. is represented by its managing director, the second accused. The second and third accused are the managing director and administrative officer, respectively of the first accused company. The first accused company purchased cotton from the complainant and was due Rs. 5,71,581 to the complainant as on July 8, 1997. On February 25, 1998, the third accused issued a cheque bearing No. 505320 for a sum of Rs. 2,71,581 and on February 28, 1998, another cheque bearing No. 505330 for a sum of Rs. 5,00,000. The cheques on presentation in the branch of the Tamil Nadu Mercantile Bank Ltd. at Theni, were dishonoured on August 24,1998, and the complainant issued notice on September 3, 1998. The notice was returned unserved on September 15, 1998. Thereafter, the complainant has filed these two complaints on September 29, 1998.
3. These two criminal original petitions were originally disposed of by a common order dated October 8, 1999, wherein the case against second and third accused in C.C. Nos. 676 and 677 of 1998, on the file of the Judicial Magistrate, Periyakulam, were quashed. The complainant filed two petitions in Crl.M.P. Nos. 9472 and 9473 of 1999 to recall the said order dated October 8,1999, and the petitions were allowed for rehearing. Both the parties argued the matter afresh on the merits.
4. Learned Counsel for the accused has argued that when once the final order of quashing the proceedings has been passed as contemplated under Section 482 of the Criminal Procedure Code, 1973, thereafter, this Court has no power either to reopen or review the said order passed and as finality of the proceedings has been reached, this Court is not empowered to reopen the same again. In support of his contention learned Counsel has relied on certain decisions.
5. In Anthony Doss, In re (1963) MLJ 393, this Court held that where a criminal revision petition was dismissed on the merits on the petitioner and his Advocate being absent al the hearing, the petition cannot be restored nor can the order be reviewed.
6. In Dhanna v. State of Rajasthan, , the Rajasthan High Court has held under Section 561A of the Criminal Procedure Code, 1898 (headnote):
"The inherent powers under Section 561A of the Criminal Procedure Code, 1898, have to be exercised very sparingly and only when the facts of the case justify the tests laid down in the section itself. They do not authorise the Court to rehear a case where the appellant or his Counsel are not heard on account of their own fault. Where, therefore, the Court is not satisfied that the absence of the Counsel at the time the appeal is called for hearing is due to any sufficient cause and the ends of justice require that a rehearing should be granted to him, the appeal decided on merits after a perusal of the record of the case will not be altered or reviewed."
7. In Moti Lal v. State of M.P., (1994) Crl. LJ 2184, Their Lordships of the Supreme Court have held that the High Court has no jurisdiction under Section 482 of the Criminal Procedure Code, 1 973, to alter its earlier judgment in view of Section 362 of the Criminal Procedure Code, 1973.
8. By placing reliance upon those decisions, learned Counsel for the accused strenuously contended that this Court cannot review or revise the common order already passed in those criminal original petitions.
9. Learned Counsel for the complainant/respondent has argued that what is prayed for by the complainant is not a review or revision of the order already passed and it is only under the provisions of Section 482 of the Criminal Procedure Code. 1973, "to secure the ends of justice", learned Counsel has relied upon a number of decisions in support of his contention.
10. In T. Somu Naidu, In re, AIR 1924 Mad 640, a Division Bench of this Court held (headnote) :
"A reasonable opportunity for the accused to be heard is an essential condition precedent to the exercise of jurisdiction.
Where the conditions laid down by law as precedent and requisite to the hearing of a case are hot observed, the Court acts without jurisdiction, and its order is, therefore, void ab initio and the case can be reheard."
In the said case no opportunity was given to the accused before exercising power under Section 439 of the Criminal Procedure Code, 1898, on the question of enhancing the punishment inflicted on him. When the matter was taken on revision, Their Lordships have held that the order of enhancement of punishment based without hearing the accused was void ab initio.
11. In Ramnarain v. State of Rajasthan, , it was held (headnote) :
"The application under Section 561 A of the Criminal Procedure Code, 1898, should have been disposed of after hearing the appellant's Counsel and its disposal without such hearing was clearly wrong and unjust. The appellant has a just grievance against the manner in which this application was disposed of. He had a right to be afforded a reasonable opportunity of being heard in support of his application."
In this decision, Their Lordships have emphasised that any disposal without affording a reasonable opportunity of being heard is unjust.
12. In Superintendent and Remembrancer of Legal Affairs, W.B. v. Mohan Singh, . Their Lordships have held (page 1004) :
"Section 561 A of the Criminal Procedure Code, 1898, preserves the inherent power of the High Court to make such orders as it deems fit to prevent abuse of the process of the Court or to secure the ends of justice and the High Court must, therefore, exercise its inherent powers having regard to the situation prevailing at the particular point of time when its inherent jurisdiction is sought to be invoked."
It is clear from this decision that when a particular situation warrants the use of the inherent power conferred on the Court, it should be invoked.
13. In Deepak v. State of Maharashtra, (1985) Crl.LJ 23, the Bombay High Court held:
"In its inherent powers as provided in Section 482 of the Criminal Procedure Code, 1973, the High Court can review or revise its judgment if such a judgment is pronounced without giving an opportunity of being heard to a party who is entitled to a hearing and that party is not at fault. For the mistake of the Court, a party cannot suffer."
14. In all these decisions, the importance of hearing the parties before passing any order has been upheld by Their Lordships. Whenever an order is passed and it is brought to the knowledge of the Court dispensing justice, it should give an opportunity to the party who requires it. A Full Bench of the Rajasthan High Court in Habu v. State of Rajasthan, , considered the inherent power of the High Court conferred under Section 482 of the Criminal Procedure Code, 1973, to recall the judgment already pronounced and held (headnote):
"The power of recall is different from the power of altering or reviewing the judgment, and powers under Section 482 of the Criminal Procedure Code, 1973, can be and should be exercised by the High Court for re-calling the judgment in case the hearing is not given to the accused and the case falls within one of the three conditions laid down under Section 482 of the Criminal Procedure Code, 1973."
The learned Judge of the Rajasthan High Court has distinguished the difference between review and revision and recalling the judgment or order to afford an opportunity to the accused of being heard.
15. Their Lordships of the Supreme Court in a recent judgment in Thomas (M.M.) v. State of Kerala, , have held that the High Court is a Court of record and it has got the inherent power to review its own judgment whenever it is absolutely necessary. Their Lordships have further held that as a Court of record, the High Court is unquestionably a superior Court of plenary jurisdiction and is competent to determine the scope of its own jurisdiction. As such, the High Court has not only power but also a duty to correct any error apparent on the face of the record. In the said case, the High Court in its revisional jurisdiction reviewed its own order and set aside the earlier order passed by it.
16. In M.S. Ahlawat v. State of Haryana, , Their Lordships of the Supreme Court have considered the recalling of their own order, under Articles 142, 21 and 32 of the Constitution of India, and held :
When a litigant complains of miscarriage of justice by an order of the Supreme Court passed without jurisdiction or without following the due procedure, the Supreme Court has the power to rectify the error, if any.
17. In this case, the conviction passed on the accused by the Supreme Court was set aside by Their Lordships on the basis of (p. 285 of 1 SCC)" to perpetuate an error is no virtue but to correct it is a compulsion of judicial conscience. "
18. No doubt, this Court when once passed a judgment or order cannot review or revise the same as the provisions under Section 362 of the Criminal Procedure Code, prohibits all Courts from altering or reviewing its judgment when once it has signed it. When we consider the facts of the present criminal original petitions, learned Counsel for the complainant/ respondent was continuously absent and in spite of the opportunities given to him, he was not present. When the matter was posted finally for disposal, learned Counsel for the petitioner/accused was ready and he has argued the matter and both criminal original petitions were posted for orders three days thereafter and order was also passed. As the Counsel for the complainant/respondent was absent, there "as no opportunity for the complainant to put forth his case and that has caused miscarriage of justice to him. This Court in the criminal original petitions quashed the proceedings in C.C. Nos. 676 and 677 of 1998, pending on the file of the Judicial Magistrate, Periakulam, for the "failure" of the said Court to record the sworn statement of the complainant at the time of taking it on file. However, learned Counsel for the complainant has brought to my knowledge and produced two certified copies to show that the learned Magistrate while taking cognizance of the offence on complaint examined upon oath by the complainant and the substance of such examination was reduced into writing and signed by the complainant and also by the Magistrate. When the Magistrate has followed the procedure as contemplated under Section 200 of the Criminal Procedure Code, 1973, the error in the order has crept in due to the failure to bring such a fact to the knowledge of this Court on two grounds, (i) for not filing the relevant document; (ii) by the absence of the complainant or his Advocate on the date when the matter was posted for final hearing. One can question whether such absence of a party on the date of final hearing will give any right of challenging the order passed, however, natural justice requires the Court to give opportunity to the parties, though they failed to use such opportunities at times. The party having a fair case should not suffer because of his absence. In the instant case, an error has crept in the order quashing the proceedings mainly because of the absence of the complainant or his Advocate and by not filing the relevant records. Anyhow, it is proved that an error has crept in the order and as held by Their Lordships in Ahlawat (M.S.) v. State of Haryana, (supra) that to perpetuate an error is no virtue but to correct it is a compulsion of judicial conscience. In such circumstances, an opportunity should be given to the complainant/respondent.
19. Learned Counsel for the accused has argued that there is no sufficient allegation in the compliant that accused Nos. 2 and 3 who are the petitioners herein are liable for an offence under Section 138 of the Negotiable Instruments Act. Paragraph 3 of the complaint says--
"Accused No. 1 is a private limited company incorporated under the Companies Act, and represented by its Managing Director Mr. G.A Vadivelu. The other accused are the persons designated as Managing Director and administrative officer of the first accused company respectively, who are persons in charge of and responsible for the conduct of the business of the first accused company."
20. Sections 141(1) and (2) of the Negotiable Instruments Act, says :
"Offences by companies.-- (I) If the person committing an offence under Section 138 is a company, every person who, al 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."
21. Learned Counsel for the respondent/complainant has argued that both cheques issued in favour of the complainant were signed by both the accused, second accused who is one of the petitioners representing the first accused company as managing director. The third accused was the authorised signatory and administrative officer of the first accused company. Therefore it is clear that both of them are liable as contemplated under Section 141 of the Negotiable Instruments Act. Section 138 of the said Act says "such person shall be deemed to have committed an offence." While considering the materials available on record A-2 and A-3 can be included within the definition of "such person". This Court in Agritech Hatcheries and Food Ltd. v. Valuable Steels India Ltd., 96 (1999) Company Cases 534, held that persons "in charge of and responsible for conduct of business" as used in Section 141 and "such person" in Section 138 includes persons who had drawn the cheque and were in charge of the conduct of business at the time of offence are liable for prosecution. The facts of this case clearly show that the petitioners herein were in the administration of the first accused company and they had issued the cheque in favour of the complainant. Learned Counsel has relied on another decision of the Andhra Pradesh High Court in Lakshmi (B.) v. Trishul Coal Services and Transporters, (1997) 4 Crimes 157, wherein it was held that when there is no allegation against a partner that he was in charge and responsible for the conduct of the business of A-1 firm, the complaint against him is liable to be quashed and the said decision is not applicable to the instant case, as there arc sufficient allegations in the complaint against the petitioners. Learned Counsel has also relied on a decision of this Court in Modern Denim Ltd. v. Lucas TVS Ltd., I (2000) BC 398=( 1999) 2 M.W.N. (Cr.) 284, infra, wherein it 'was held that when there is no evidence against the accused to show that at the time of commission of offence, they were in charge and were responsible to the company for the conduct of the business, they are liable to be discharged. As already stated, in the instant case, when there is sufficient evidence to show that the petitioners herein were responsible to the company for the conduct of the business at the time when the offence was committed, their liability cannot be questioned.
22. Learned Counsel for the petitioners has argued that there was no proper service of summons as contemplated under Section 62 of the Criminal Procedure Code, 1973. To prove the same, learned Counsel has produced the xerox copy wherein the name of the accused has not been filled up. However, it is better to look into the original which has not been produced. Learned Counsel for the respondent has argued that backside of the xerox copy of the summons has not been filled. By looking into the xerox copy of the alleged summons, we cannot come to any fair conclusion. No steps have been taken for the production of the original summons. Further it was argued that at the time when the summons were taken to A-2, Mr. G.A. Vadivelu, he was admitted in the hospital. To prove the same, he has produced xerox copies of the news along with the photograph appearing in the newspapers. It seems that A-2 met with an accident and he was undergoing treatment at Bangalore for some time. All these cannot be taken as sufficient grounds to quash the proceedings. When once it is proved that the cheques were dishonoured and the complainant has filed the case as contemplated under Sections 141 and 142 of the Negotiable Instruments Act, these reasons which are trivial in nature cannot be taken as valid reasons to quash the proceeding. Therefore, the earlier order passed by this Court has to be re-called under Section 482 of the Criminal Procedure Code, 1973, "to secure the ends of justice". In the result, the earlier order passed in Criminal Original Petitions Nos. 22814 and 22816 of 1998, dated October 8, 1999, are re-called and both the criminal original petitions are dismissed.
23. At this stage, learned Counsel for the second and third accused has requested this Court to direct the Magistrate to recall the warrant pending against them and give them some lime to appear before the Judicial Magistrate, Periyakulam, Learned Counsel for the respondent/complainant has no objection to re-call the warrant. Accordingly, in the peculiar circumstances of the case, the N.B.Ws. issued against the petitioners herein are recalled and accused Nos. 2 and 3 are directed to appear before the Magistrate on June 5, 2000, without fail.