Smt. Chhaya Roy W/o Durga Shankar Roy, aged about 58 years, R/o Satipara Ambikapur, P.S. City Kotwali & P.O. Ambikapur, Civil & Revenue District - Ambikapur (C.G.) 2. Shri Durga Shankar Roy S/o Late Prabhakar Roy, aged about 69 Years, R/o Satipara Amb

Chhatisgarh High Court (Single Judge)

ACQA->ACQUITTAL APPEAL [ APPEAL U/S 378 ], 218 of 2014 of 2015, Judgment Date: Mar 09, 2015

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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Cr. M. P. No. 218 of 2014
1. Smt. Chhaya Roy W/o Durga Shankar Roy, aged about 58 years, R/o
Satipara Ambikapur, P.S. City Kotwali & P.O. Ambikapur, Civil &
Revenue District - Ambikapur (C.G.)
2. Shri Durga Shankar Roy S/o Late Prabhakar Roy, aged about 69
Years, R/o Satipara Ambikapur, P.S. City Kotwali & P.O. Ambikapur,
Civil & Revenue District - Ambikapur (C.G.)
3. Smt. Debjani Roy W/o. Shri Prashant Roy, aged about 36 Years R/o
Satipara Ambikapur, P.S. City Kotwali & P.O. Ambikapur, Civil &
Revenue District - Ambikapur (C.G.)
4. Shri Debashish Ghosh S/o Tarkeshwar Ghosh aged about 43 Years
R/O. P.O.Gali Tikra Para Bilaspur, P.S. City Kotwali & P.O. Tikra Para
Bilaspur (C.G.)
5. Dev Narayan Yadav S/o Shri Ramjag Yadav, aged about 39 Years, R/o
Babupura Ambikapur, P.S. City Kotwali & P.O. Ambikapur, Civil & Rev.
Distt. Ambikapur (C.G.)
6. Sanjay Khandelwal S/o Shri Mulchand Khandelwal, aged about 45
Years, R/o Sai Manglam Vyapar Vihar Bilaspur, P.S. Civil Line,
Distt. Bilaspur (C.G.)
7. Vijay Pratap Singh S/o Shiv Pratap Singh, aged about 42 Years, R/o
Partner M/S.Dewanshi Construction, Roy Colony Satti Para Chowk,
Ambikapur, P.S. City Kotwali, P.O. Ambikapur, Civil & Rev. Distt.
Ambikapur (C.G.)
---- Petitioners
Versus
1. Keshav Das R. Jadwani S/o Late Ram Chandra Jadwani, R/o Varun
Kunj, A-16 Subham Vihar New Puraina, P.S. Telibandha, P.O. Raipur,
Tahsil & Rev. & Civil Distt. Raipur (C.G.)
2. Subhash Chandra Roy, Partner M/S.Dewanshi Construction, Roy
Colony Satti Para Chowk, Ambikapur, P.S. City Kotwali, P.O.
Ambikapur, Civil & Rev. Distt. Ambikapur (C.G.)
3. M/s. Dewanshi Construction Partnership Firm, A-5 Class Contractor,
Roy Colony Sttai Para Chowk Ambikapur, P.S. City Kotwali, P.O.
Ambikapur, Civil and Revenue Distt. Ambikapur (C.G.)
4. State of Chhattisgarh through District Collector Raipur, P.S. Ganj, Tah.
& Rev. and Civil Dist. Raipur (C.G.)
---- Respondents
For Petitioners : Shri Badruddin Khan, Advocate
For Respondent No.1 : Shri G. D. Vaswani, Advocate
For Respondent Nos.2 &3 : Shri Yogesh Sharma, Advocate
For Respondent No. 4 : Shri Lav Sharma, P.L.
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Hon'ble Shri Justice P. Sam Koshy
C A V Order
Passed On : 09.03.2015
The petitioners through the instant writ petition under Section
482 of Cr.P.C. have sought for relief of quashment of the Complaint
Case No. 236 of 2011 pending before the court of JMFC, Raipur to
the extent so far as the petitioners are concerned.
2. The brief relevant facts for adjudication of the petition are that
respondent No.1 Keshav Das R. Jadwani filed a complaint case before
the JMFC, Raipur stating that he in the capacity of A-4 category
Government contractor had received certain contracts from
respondent No.3 firm i.e. M/s Dewanshi Construction Partnership
Firm relating to construction work and road construction. According
to the complainant, respondent No.3 firm of which respondent No.2
Subhash Chandra Roy as well as all the present petitioners were
active partners had made a part payment of Rs.4,70,000 by way of a
cheque bearing No.795914 on 08.12.2010 for the said construction
work carried by the complainant. According to the
complainant/respondent No.1, the said cheque was put for clearance
in his State Bank of India account at Telebandha Branch, Raipur and
the said bank gave an intimation that the payment could not be
cleared because of insufficient fund. Thereafter the complainant
served a notice to respondent No.3 firm and since there was no
response or reaction on the part of respondent No.3, the complainant
had left with no other option but to file a complaint case under
Section 138 of the Negotiable Instrument Act before the JMFC,
Raipur. The Court below, on due consideration of the statement of
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the complainant and the contents in the complaint, duly registered
the same as Complaint Case No. 236 of 2011 and issued summons
to the accused persons in the said complaint case. Further facts of
the case is that the present petitioners who are also the accused
persons in the complaint case moved an application under Section
141 of Negotiable Instrument Act on 12.12.2012 seeking for
discharging of the criminal proceedings on the ground that they were
not directly involved in the issuance of the cheque to respondent No.1
and that the entire affairs of respondent No.3 firm was being
managed by respondent No.2.
3. According to the petitioners, the said firm is a partnership firm
and the affairs of the firm are managed by respondent No.2 Subhash
Chandra Roy. The said firm had been constituted by a partnership
deed dated 01.05.2008 and that all the partners in the said
partnership firm had in very categorically terms authorized
respondent No.2 for managing the firm and also had authorized
respondent No.2 to operate bank accounts and the financial related
matters on behalf of the firm independently. A power of attorney was
also executed for this purpose by the petitioners in favour of
respondent No.2 Subhash Chandra Roy appointing him as the
attorney holder on behalf of the firm. Copy of the partnership Deed
and the power of attorney executed by the petitioners are Annexures
P-1 & P-2 and accordingly the petitioners had sought for their
discharge from the proceedings under Section 138 of Negotiable
Instrument Act.
4. The said application under Section 141 of Negotiable
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Instrument Act was rejected by the JMFC, Raipur on 26.04.2013
(Annexure P-5) against which the petitioners preferred a revision
petition before the first Additional Sessions Judge, Raipur which was
registered as Criminal Revision No.311 of 2013. The said Criminal
Revision was also rejected by the first Additional Sessions Judge vide
its order dated 20.11.2013.
5. Both these orders i.e. order dated 26.04.2013, rejection of the
application under Section 141 of N.I. Act and order dated
20.11.2013, rejection of the Criminal Revision were on the ground
that since the complaint case had already got registered and that it is
a summons trial proceedings, the contentions put forth by the
petitioners being a matter of evidence the Court does not have the
power to recall the registration of the complaint case and discharge of
the present petitioners. It was also held that whether the petitioners
have an active role in the issuance of the cheque or not is a matter of
evidence which cannot be looked into at the preliminary stage by the
Court below and accordingly, the applications moved by the
petitioners at both the levels were rejected leading to the filing of the
present petition under Section 482 of Cr.P.C.
6. The main contention of the counsel for the petitioners before
this Court is that the complaint case ought to have been rejected by
the JMFC, Raipur at the threshold itself for more than one counts;
firstly, the complaint does not disclose the role of each of the
petitioners in the issuance of the cheque. Secondly, the complainant
has not been able to establish before the trial Court by making
specific pleadings in his complaint about the nature of the part
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played by each of the petitioners while issuing the cheque on behalf
the firm. Thirdly, the complainant has also not disclosed anything in
his complaint as to what extent each of the petitioners are
responsible in the issuance of the cheque in favour of respondent
No.1/complainant.
7. In support of its contention, counsel for the petitioners relied
upon (2013) 8 SCC 71 (Aparna A. Shah v. Sheth Developers Private
Limited and another), (2007) 9 SCC 481 (N. K. Wahi v. Shekhar Singh
and others), 2010 (3) SCC 330 (National Small Industries Corporation
Limited v. Harmeet Singh Paintal and another), (2012) (3) C.G.L.J.
222 (M/s Anil Rice Mill and Others v. State of C.G. & Another), 2010
(2) DCR 41 and 2010 (2) DCR 48.
8. Per contra, counsel for the complainant/respondent No.1
opposing the revision petition contended that the present petition
deserves to be rejected firstly on the ground of maintainability and
secondly on the ground of being totally devoid of substance and
merit. According to the counsel for respondent No.1, the present
petition under Section 482 Cr.P.C. is nothing but a second revision
petition and that the second revision is not permissible under law
and therefore the present revision petition under Section 482 Cr.P.C
should be rejected. Counsel for respondent No.1 submitted that once
when the petitioners have already exercised the revisional powers of
the higher Court in challenging the impugned order and the
revisional Court has found that there is no substance in the revision
petition and rejected the same, the petitioners by way of invoking the
powers of this Court under Section 482 of Cr.P.C. cannot for the
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second time re-agitate the same issue and a second revision under
the provisions of law is not sustainable. Counsel for respondent No.1
relied upon AIR 1979 SC 381 (Jagir Singh v. Ranbir Singh and
another) in support of his contention and also relied upon a decision
rendered by Punjab and Haryana High Court reported in 1996
Criminal Law Journal 2018 in the matter of Jagir Singh v. State of
Haryana and others. Counsel for respondent No.1 contended that
once the Revision Petition has already been exercised before the
Additional Sessions Judge and the impugned order has been uphold,
the second revision under Section 482 of Cr.P.C. would not be
maintainable. According to the counsel for respondent No.1, since
the power of the higher Court by way of a revision has already been
exhausted, the second revision cannot be maintainable and therefore
the present petition deserves to be rejected.
9. So far as the merits of the case is concerned, counsel for
respondent No.1 clearly submits that in para-1 of the complaint
lodged by the complainant itself it has been narrated about the role
of the petitioners as well as respondents 2 and 3 whereby the
complainant has stated that the petitioners are all equally
responsible for the transaction made by the firm and the issuance of
the cheque. Therefore the petitioners cannot be discharged from the
criminal prosecution as they are all equally and jointly responsible
for the transactions made by the firm wherein a cheque has been
issued which stood dishonoured. For these reasons counsel for
respondent No.1 prayed for rejection of the present petition.
10. Having heard the counsel for the parties and also on perusal of
the record, so far as the first contention of the counsel for respondent
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No.1 in respect of the sustainability of the present revision petition is
concerned, this Court is of the view that the powers conferred upon
the High Court under Section 482 Cr.P.C. are the inherent powers
overriding other powers of the Cr.P.C. including Section 397 Cr.P.C
thereof. It is a settled position of law that unless there is a statutory
bar, the High Court under Section 482 of Cr.P.C. can always exercise
its inherent powers. In the given facts and circumstances of the
case, Section 482 of Cr.P.C clearly enables the High Court to make
such order as may be necessary to prevent an abuse of process of
any Court or otherwise to secure the ends of justice. The power
under Section 482 Cr.P.C. conferred upon the High Court is an
independent power to pass orders ex debito justitiae in cases where
grave and sustainable injustice has been done or the process of Court
being seriously abused. It is not merely a revisional power to be
exercised but is also a supervisory power conferred upon the High
Court to quash a criminal proceeding or to expunge a uncalled
remark passed by the subordinate Courts. Inherent powers under
Section 482 Cr.P.C. can be exercised only when no other remedy is
available to the litigant and normally should not be exercised where
there is a specific remedy provided under the statute. In a decision
rendered by the Supreme Court in the case of Puran v. Rambilas and
another reported in (2001) 6 SCC 338 it has been held that the power
of the High Court under inherent jurisdiction under Section 482
Cr.P.C. is unaffected by provisions of Section 397 (3) Cr.P.C.
11. It is further found that the Supreme Court in a series of
judgments have also held that in spite of a revision petition under
Section 397 Cr.P.C. having been exercised, it does not bar the High
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Court from exercising its inherent powers. According to the Supreme
Court, in the event if a petition under Section 482 Cr.P.C. is
entertained, it should not be treated as a second revisional authority
but is to be construed as a Court having inherent powers to judge
only the fact that if the proceedings before the Court below are
permitted to proceed further, it would amount to abuse to the
process of Court and the interest of justice and under these
circumstances, the High Court has got all the powers to interfere with
such proceedings. For these reasons, this Court is of the opinion
that merely because the petitioners have invoked the powers under
Section 397 Cr.P.C. before the Sessions Court would not by itself
preclude this Court from exercising its inherent powers. Accordingly,
this Court is of the opinion that the present petition is therefore
maintainable and the objection raised by respondent No.1 being
unsustainable stands rejected.
12. So far as the contention whether a case has been made out by
the petitioners for this Court to exercise its inherent powers is
concerned, we will have to peruse the recent decisions rendered by
the Supreme Court in this regard as to under what situation can the
petitioners’ case be entertained. The Supreme Court in a couple of
recent decisions has held that it is only the drawer of the cheque who
can be made an accused in the proceedings under Section 138 of the
Negotiable Instrument Act. The latest judgment (2013) 8 SCC 71 in
the case of Aparna (Supra) which further stands reiterated in 2014
AIR SCW 4210 (Anil Gupta v. Star India Pvt. Ltd. & another) and
earlier also in (2010) 3 SCC 330 in the case of National Small
Industries (supra) the Supreme Court has very categorically held that
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it should be specifically spelt out how and in what manner the
accused persons were responsible firstly for conducting of the firm's
business and secondly in the issuance of the cheque. The provisions
of Negotiable Instrument Act being a penal provision it has to be
strictly construed. It has been held in all the above referred
judgments that the person against whom the proceeding is sought for
should be in-charge and responsible for the conduct of the business
of the firm at the relevant point of time and also it should be spelt out
in the complaint itself as to in what manner the co-accused was
conducting the business of the Company except for being a partner of
the firm. In the instant case, it is not the case of the complainant
that the present petitioners were also the signatories to the cheque
and that the complaint is not disclosing the fact as to in what
manner the present petitioners were conducting the business of the
firm. The complaint is also silent on the role played by each of the
petitioners in the course of issuance of the cheque.
13. Again in the case of Paresh P. Rajda v. State of Maharashtra
and another reported in (2008) 7 SCC 442 it has been held by the
Supreme Court that there must be specific averments against each of
the proposed accused persons saying how they were responsible for
their day-to-day affairs of the firm and how they were liable for
repayment of the amount of dishonoured cheque. The Supreme
Court has categorically held that unless there is a clear averment in
the complaint or there being evidence with regard to the role played
by the directors as to whether they were in-charge for the conduct of
the affairs of the Company, it would not be possible to maintain a
prosecution against them. Similar view has also been taken in the
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case of DCM Financial Services Limited v. J. N. Sareen and another
reported in (2008) 8 SCC 1 wherein also the Supreme Court has
reiterated the above given position of law.
14. In addition to the above given legal position, relying upon the
judgments referred to by the counsel for the petitioners i.e. 2010 (2)
DCR 41 of the Jharkhand High Court and 2010 (2) DCR 48 of the
Bombay High Court and also the judgment of the Madras High Court
reported in 2004 (2) BC 73, this Court is of the opinion that the
complaint lodged by respondent No.1 before the trial Court does not
disclose the role played by each of the petitioners and also does not
disclose the fact as to how the petitioners were responsible for
issuance of the cheque which has got dishonoured. A perusal of the
complaint lodged by respondent no.1 itself would show that except
for a bald statement that the petitioners being active partners in the
firm, there is no averment in respect of the role played by the present
petitioners in issuance of the cheque or for that matter in conducting
the affairs of the business of the firm. Neither does the complaint
show any act attributed towards any of the petitioners for the
purpose of issuance of the cheque.
15. From all the above given facts and circumstances of the case
what is evident and clear from the pleadings and the documents
brought before this Court is that the entire transaction between the
parties i.e. complainant/respondent No.1 and respondent No.3 firm
was made by respondent No.2. Further, the partnership deed as well
as the power of attorney executed (Annexures P1 & P-2) reflect that it
was the respondent No.2 who was responsible for conducting the
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affairs of the business of respondent No.3 firm and as such this
Court is of the view that relegating the petitioners to face the
prosecution in a proceeding initiated against them under Section 138
of Negotiable Instrument Act would amount to misuse of the process
of law.
16. For the foregoing reasons, the instant petition deserves to be
and is accordingly allowed. As a consequence, the proceedings under
Section 138 of Negotiable Instrument Act against the present
petitioners in the Complaint Case No. 236 of 2011 pending before the
JMFC, Raipur stands quashed and the present petitioners stand
discharged from the proceedings under Section 138 of Negotiable
Instrument Act.
Judge
Bhola