Bombay High Court
Deep S/O Ramesh Saraf vs Dr Murli Hanumandas Agrawal And Others on 20 September, 2017
Author: V. M. Deshpande
Bench: V. M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPLICATION (APL) NO.383/2012
Deep s/o Ramesh Saraf,
aged 32 years, Occ. Business,
r/o c/o Vidarbha Refineries Ltd.
Akola Road, Khamgaon, Tq. Khamgaon,
Dist. Buldhana. .....APPLICANT
...V E R S U S...
1. Dr. Murli Hanumandas Agrawal,
aged 64 years, Occ. Business.
2. Ashwin Murli Agrawal,
aged about 31 years, Occ. Business,
Both r/o Vishnu Mahel, D. Road,
Churchgate, Mumbai.
3. Pradip V. Chitre, aged major,
Occ. Service, r/o c/o Assets Recovery
Management Service Branch, 1st Floor,
70/80 Mahatma Gandhi Marg, Fort,
Mumbai- 400 023.
4. State of Maharashtra thr. A.P.P.
Khamgaon, Tq. Khamgaon, Dist.
Buldhana. ...NON APPLICANTS
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Mr. S. V. Sirpurkar, Advocate for applicant.
Mr. I. Damle, A.P.P. for non applicant no.4.
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CORAM:- V. M. DESHPANDE, J.
DATED :- 20.09.2017
ORAL JUDGMENT
1. Heard Mr. S.V. Sirpurkar, Advocate for applicant and Mr.I. Damle, A.P.P. for non applicant no.4. Counsel for the non applicant nos.1 to 3 chose not to remain present when the matter was called out for final hearing.
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2. Learned counsel for the applicant seriously assailed the judgment and order passed by learned Additional Sessions Judge, Khamgaon dated 11.03.2010 in Criminal Revision No.121/2008 and Criminal Revision No.38/2009 whereby the learned revisional Court allowed those two criminal revisions and set aside the order passed by the learned Judicial Magistrate First Class, Akola in Misc. Criminal Case No.136/2008 whereby the process for the offence under section 500 of the IPC was issued against the non applicant nos. 1 to 3.
3. Few facts giving rise to the present application are as under:
(i) The applicant and the non applicant nos. 1 and 2, at the relevant time were the Directors of Vidarbha Refineries Limited (hereinafter referred to as "Directors" for the sake of brevity). Non applicant no.3-Pradip Chitre, at the relevant time, was Manager of Bank of India and was working with Assets Recovery Management Service Branch, Mumbai.
(ii) The applicant filed complaint against the non applicant nos. 1 to 3 with an assertion that in the meeting dated 05.01.2002, the Directors of the company resolved that no transaction with any bank would take place without signature of all Directors. As per the complaint, the said resolution was ::: Uploaded on - 22/09/2017 ::: Downloaded on - 23/09/2017 01:56:25 ::: 3 apl383.12.odt communicated to the bankers. It is further the case of the applicant/complainant that non applicant no.1-Dr. Murli Agrawal, in spite of the knowledge of the resolution passed in the meeting dated 05.01.2002, issued two cheques of the Bank of India dated 01.12.2005 and 10.12.2005 for Rs.5,00,000/- each on behalf of the Vidarbha Refineries Ltd. According to the complaint, the said cheque was dishonoured and therefore the Bank of India, filed a complaint against the applicant and non applicant nos. 1 and 2 for an offence punishable under Section 138 of the Negotiable Instruments Act at Mumbai. The learned Court trying the said criminal complaint filed by the Bank of India, issued the process against the applicant and the non applicant nos.1 and 2 for the offence under Section 138 of the Negotiable Instruments Act. The said summons was served upon the applicant at Khamgaon and according to the applicant-complainant that has disreputed him and that gave an occasion to file the complaint in question at Khamgaon.
(iii) In the said criminal complaint, the complainant not only joined the Directors but also non applicant no.3 who was a bank official of the Bank of India. In the complaint itself, it is stated by the applicant/complainant that the complaint filed by the Bank of India was withdrawn and at the time of filing of the ::: Uploaded on - 22/09/2017 ::: Downloaded on - 23/09/2017 01:56:25 ::: 4 apl383.12.odt complaint in question, criminal complaint filed by the Bank of India was not in existence. Along with the complaint, the applicant filed following documents as per the list of the documents appended to the complaint.
"List of Documents:
1. Reply of Ramesh M. Agrawal & Prem M. Saraf, DRT, Mumbai.
2. Notice to Deep R. Saraf, Mumbai Court.
3. Mumbai Court settlement paper.
4. Dena Bank Mumbai, Shares sales case paper in Khamgaon Court
5. Any other document on which the complainant relies, reserves his right to file the same at the relevant stage."
4. The learned Magistrate on 10.11.2008 passed the following order:
"Perused complaint along with verification and affidavit, likewise, list of documents. Complainant prima-facie established his case. Case is within limitation. Issue process under Section 500 of I.P.C. against accused No.1 to 3 on P.F."
5. Non applicant nos.1 and 2 questioned the wisdom of the learned Magistrate of issuance of process by filing Criminal ::: Uploaded on - 22/09/2017 ::: Downloaded on - 23/09/2017 01:56:25 ::: 5 apl383.12.odt Revision No.121/2008. Similarly, non applicant no.3, the bank official also filed separate Criminal Revision viz. Criminal Revision No.38/2009. The learned Sessions Judge, Khamgaon decided those two criminal revisions by common judgment dated 11.03.2010 thereby both the revisions were allowed and the process was set aside giving rise to the present proceedings.
6. According to the learned counsel for the applicant, though it was well within the knowledge of the non applicant nos. 1 and 2 about the resolution, non applicant no.1 deliberately issued two cheques. It is also the contention of the learned counsel for the applicant that the resolution was brought to the notice of the non applicant no.3 and the bank was also aware about the resolution dated 05.01.2002 and therefore ought not to have accepted the cheque issued by the non applicant no.1, which was ultimately dishonoured. According to the learned counsel for the applicant therefore the complaint filed on behalf of the Bank of India was filed with an intention to disrepute the present applicant. He therefore submitted that summons issued by the learned Magistrate trying the case of Bank of India at Mumbai has resulted into serious disreputation to the non applicant not only at ::: Uploaded on - 22/09/2017 ::: Downloaded on - 23/09/2017 01:56:25 ::: 6 apl383.12.odt Khamgaon but also at Raipur where the sister concerns of the applicant are established.
7. After hearing the learned counsel for the applicant, in my view, the learned revisional Court was right in reaching to the conclusion that the process issued by the learned Magistrate is required to be set aside since it is the outcome of the non application of mind.
8. It reminds me the law laid down by the Hon'ble Apex Court in Pepsi Foods Ltd. and anr. Vs. Special Judicial Magistrate and Others; reported in (1998) 5 SCC 749 and particularly paragraph 28 of the said authoritative pronouncement. Paragraph 28 of the judgment reads thus:
"Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. it is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support ::: Uploaded on - 22/09/2017 ::: Downloaded on - 23/09/2017 01:56:25 ::: 7 apl383.12.odt thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."
9. Keeping in mind the law laid down by the Hon'ble Apex Court, if the assertion made in the complaint are scrutinized then following allegations against the non applicants can be listed:
(i) That there was a unanimous resolution of the Directors dated 05.01.2002 that all the cheques should be signed by all Directors.
(ii) The said resolution was brought to the notice of the banks and accused no.3 (non applicant no.3) has given acknowledgment thereof.
(iii) In spite of the resolution, non applicant no.1/original accused no.1, issued the cheque under his signature. ::: Uploaded on - 22/09/2017 ::: Downloaded on - 23/09/2017 01:56:25 :::
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(iv) In spite of the resolution, bank accepted the cheque issued under the signature of the non applicant no.1 alone for clearance.
(v) The cheques were dishonoured for insufficient funds resulting into the complaint filed by the Bank Of India at Mumbai and the issuance of the process in the said complaint against the applicant and non applicant nos. 1 and 2.
10. Keeping in mind the law laid down by the Hon'ble Apex Court in Pepsi Foods, cited supra it was expected from the learned Magistrate at the time of issuance of process to at least verify about the facts mentioned in the complaint. List of the documents as enumerated in the earlier part of this judgment shows that the resolution dated 05.01.2002 was not placed on record, the acknowledgment under the signature of the non applicant no.3 is also not produced on record showing that he was aware about the said resolution. In my view, the perusal of the order passed by the Magistrate shows that it is passed in the most mechanical manner. What was expected at the time of issuance of process is the application of mind by the learned Magistrate to the set of assertions made in the complaint which can be borne out through ::: Uploaded on - 22/09/2017 ::: Downloaded on - 23/09/2017 01:56:25 ::: 9 apl383.12.odt the documents. In the absence of material documents on record, in my view, the learned Magistrate has committed mistake by issuing the process.
11. Further, none of the ingredients of Section 499 of the Indian Penal Code are fulfilled by the complainant. In that view of the matter, the learned revisional Court has rightly found that the order passed by the learned Magistrate was erroneous in law.
Resultantly, I do not find any merit in the application. Consequently, the application is dismissed. Rule is discharged.
JUDGE kahale ::: Uploaded on - 22/09/2017 ::: Downloaded on - 23/09/2017 01:56:25 :::