Bebitai Ramling Deshmukh and Anr. v. Karmayogi S.R. Paricharak Gramin Bigar Sheti Sahakari Patsanstha Mydt. and Anr.

Bombay HC9 Sept 2005APPLN/3790/2005

Case brief

AI extract

What is this about?

In this criminal application, the court rejected a plea to quash summons under Section 138 of the Negotiable Instruments Act. The court held that the complaint clearly stated the applicants gave the cheque as office bearers and that evidence regarding their continued tenure (annexures) cannot be acted upon at the summoning stage.

What did the court decide?

The criminal application was rejected and the summons were not quashed.

Bebitai Ramling Deshmukh and Anr. Vs Karmayogi S.R… — Company and Corporate | Bombay HC (2005)

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CRIMINAL APPELLATE JURISDICTION

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 CRIMINAL APPLICATION NO.3790 OF 2005

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 Sou.Bebitai Ramling Deshmukh
 & Or. ..Applicants

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Vs.

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 Shri.Karmayogi S.R.
 and Anr. ..Respondents

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 ....
 Mr.Amit Shete for Applicants
 Mr.Rajesh More, A.P.P. for Respondent-State

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CORAM: SMT. V.K. TAHILRAMANI, J.
 DATEOF RESERVING
 THE ORDER : 25.08.2005
 DATE OF PRONOUNCING
 THE ORDER : 09.09.2005

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P.C.

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 1. Heard the learned advocate for the applicants
 and learned A.P.P. for the State.

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 2. The applicants i.e. original accused nos. 2

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 and 3 have prayed for quashing of process issued
 against them under Section 138 of Negotiable
 Instruments Act. The said process has been issued
 in STC No. 1491 of 2004 which is pending before

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 the learned J.M.F.C. Pandharpur.

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 3. Mr.Shete the learned advocate for the

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 applicants submitted that there is nothing in the
 complaint to show that the applicants can be held
 liable under Section 138 of Negotiable Instruments

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 Act. However, I find this submission to be

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 incorrect as in the complaint, it is very clearly
 stated that the present applicants had given the
 cheque in question to the complainant. The
 applicants are the office bearers of the Savitribai
 Phule Maharashtra Sahkari Society. They are the
 Directors of the said society. The applicant no.1
 is the Chairman of the said Society and applicant

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 no.2 is the Secretary of the said Society. It is
 clearly stated in the said complaint that the
 present applicants gave the cheque to the

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 complainant in their capacity as office bearers of
 accused no.1 Society. Thus, it cannot be said that
 there is no material in the complaint in respect of
 the present applicants.

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 4. The second submission of Mr.Shete is that there
 is no material to show that the present applicants

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 were under any legal liability in respect of the
 amount of the cheque. It is submitted that cheque
 was not drawn in respect of any debt or any
 liability and thus, the applicants cannot be held
 liable under Section 138 of Negotiable Instruments
 Act. In this connection, it would be pertinent to
 refer to the decision of the Supreme Court in the
 case of A.V.Murty Vs. P.S.Nagabasabanna [(2002)

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Cri.L.J. 1479]. The Supreme Court has observed in
 the said case that question whether the cheque
 drawn was in respect of debt or liability which was
 not legally enforceable, is mixed question of law
 and fact and cannot be gone into at the initial
 stage but trial would be necessary in respect of
 this issue. Thus, I am not inclined to quash the
 process on the basis of this submission.

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 5. The next contention raised by the learned
 advocate for the applicants is that the cheque in
 question was issued on 18.1.2004 and it came to be
 dishonoured on 9.2.2004 whereas the applicant no.2
 has ceased to be the Director of the Society on
 30.4.2003. In support of this contention, he has
 placed reliance on the copy of Resolution dated

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 30.4.2003. Thus, he has submitted that at the time

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 when the cause of action arose, the applicant no.2
 was not concerned with the accused no.1 and thus he
 was not incharge or responsible for the conduct of
 the business of accused no.1-Society.

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 6. In the case of Raj Lakshmi Mills V.Shakti

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Bhakoo reported in (2002) 8 SCC 236, the High Court
 had quashed the proceedings on the assumption that
 "X" was not in charge of or responsible for the
 conduct of business of the firm. The Supreme Court
 has observed that "We are of the opinion that at
 the stage of summoning when evidence was yet to be
 led by the parties, the High Court could not on an
 assumption of facts come to a finding of fact that
 the accused was not responsible for the conduct of
 the business. On this ground alone, these appeals
 are allowed and the impugned decision of the High
 Court is set aside".

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 7. Moreover, in the case of State of M.P. Vs.
Awadh Kishore Gupta & Ors. reported in (2004) 1

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SCC 691, the Supreme Court has observed that in the
 matters under Section 482 of Cr.P.C., annexures to

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 the petition cannot be termed as evidence without
 being tested and proved and hence, these annexures
 should not be acted upon by the High Court. So
 also, in the case of Chand Dhawan V. Jawaharlal
and Ors. reported in (1992) 3 SCC 317, it has been
 held by the Supreme Court that the Court should not
 act on annexures to the petition where the
 documents are not admitted or accepted by the
 complainant. In view of the facts of this case and
 the observations of the Supreme Court in the
 various decisions cited above, I am of the opinion
 that no reliance can be placed on the document

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 annexed i.e. Resolution at this stage.

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 8. In this view of the matter, I find no merit in

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 the application and the application is rejected.

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 [ SMT.V.K.TAHILRAMANI,J.]

Bebitai Ramling Deshmukh and Anr. v. Karmayogi S.R. Paricharak Gramin Bigar Sheti Sahakari Patsanstha Mydt. and Anr.

Case brief

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Bebitai Ramling Deshmukh and Anr. v. Karmayogi S.R. Paricharak Gramin Bigar Sheti Sahakari Patsanstha Mydt. and Anr.

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