Uttarakhand High Court
Elias D Souza And Ors vs Shirdi Industries Ltd on 17 July, 2017
Author: U.C.Dhyani
Bench: U.C.Dhyani
1
IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL
Criminal Misc. Application No. 125 of 2010
(Under Section 482 Cr.P.C.)
Elias D'souza and two others .............. Applicants
versus
Shirdi Industries Ltd. .......... Respondent
Mr. S. K. Agrawal, Senior Advocate, assisted by Mr. Swapnil Bisht,
Advocate, present for the applicants.
None is present for the respondent despite service of notice.
U.C. Dhyani, J. (Oral)
The applicants, by means of present application under Section 482 Cr.P.C., seek to quash the entire proceedings of Criminal Complaint Case No. 807 of 2009, Shirdi Industries Ltd. vs. C& M Farming and others, under section 138 of the Negotiable Instruments Act, pending before the Judicial Magistrate, Rudrapur, District Udham Singh Nagar.
2. The applicants were summoned to face the trial, at the instance of the respondent, for the offence punishable under Section 138 of the Negotiable Instruments Act. Notice was issued to the respondent, but, none has turned up on their behalf, despite service of notice upon them. The respondent is being awaited by the Court since 2010. It appears that the 2 respondent has lost interest in the case and, therefore, nobody is coming for him in the Court to contest the present petition under Section 482 Cr.P.C..
3. The respondent filed a complaint case against the applicants for the offence punishable under Section 138 of the Negotiable Instruments Act alleging therein that the applicants no. 2 & 3 as Directors of the company issued a cheque bearing no. 021300 dated 03.02.2007. It was to be drawn at Nasik Branch of Central Bank of India for an amount of Rs. 58,18,547/- to discharge their liabilities due towards the respondent. It is further alleged that when the respondent presented the aforesaid cheque before the Union Bank of India Branch Rudrapur, District Udham Singh Nagar for encashment, the cheque got dishonoured and the same was returned back unpaid on 04.5.2007 along with the memo of return dated 25.03.2007. A notice of demand under Section 138(b) of the NI Act was sent to the applicants through registered post on 21.05.2007 through counsel of the respondent. The notice was deemed to have been served upon the applicants on 28.05.2007, due to non return of the same. In spite of the aforesaid notice, having been served upon all the applicants, they failed to make payment to the respondent within the stipulated period of 15 days as provided in the Act.
4. Various grounds have been taken by the applicants in their defence. This Court need not reproduce these grounds for the sake of brevity, as they are already part of record.
35. From perusal of the documents, brought on record, it appears that there is delay in sending the notices to the applicants and, therefore, the same renders this complaint not prosecutable. The notice is silent on some vital aspects. The Bank intimated to the applicants that the alleged cheque has not been issued from their account. Bank was categorical in notifying the applicants that the disputed cheque does not belong to them. In fact, this cheque was issued by one Mukund Kokil from his individual account and not on behalf of the company in satiation of his personal business transaction and, therefore, the applicants cannot be held liable for the same. Mr. Mukund Kokli had already resigned from the company in the year 2007.
6. Considering the grounds taken up in the present petition, there are remote chances of successful prosecution of the accused applicants. Present petition under Section 482 Cr.P.C. is not being opposed by anybody, much les, the respondent.
7. This court finds substance in the submission of learned counsel for the applicants that if the trial against the applicants continues, the same may amount to abuse of the process of the Court.
8. The Constitutional Bench of the Hon'ble Apex Court in the decision of Inder Mohan Gosami and another vs. State of Uttararanhal and others, reported in (2008) 1 SCC (Cri.) 259, has laid down the guidelines for exercising the powers under section 482 Cr.P.C., wherein it was held 4 that inherent power under section 482 Cr.P.C. can been exercised:
i. to give effect to an order under the Code; ii. to prevent abuse of the process of the court, and iii. to otherwise secure the ends of justice.
9. In view of the above discussion, C-482 Petition is allowed. Accordingly, the entire proceedings of Criminal Complaint Case No. 807 of 2009, Shirdi Industries Ltd. vs. C& M Farming and others, under Section 138 of the Negotiable Instruments Act, pending before the Judicial Magistrate, Rudrapur, District Udham Singh Nagar against the applicants, are hereby set aside.
10. Since present C-482 Cr.P.C. petition is being decided in the absence of respondent, although with due notice, still, liberty is granted to it to move for recall of this Order, if it feels aggrieved with the same.
(U.C.Dhyani,J.) 17.07.2017 Kaushal 5