Allowed

M/S A.B.I. Express Pvt.Ltd v. the State of Maharashtra

Bombay HC1 Dec 2005WP/1631/2004

Case brief

AI extract

What is this about?

This writ petition challenged the Sessions Judge's order refusing to issue process against a partner accused of cheque forgery. The High Court held the revisional court erred by evaluating evidence meant for trial. It set aside the order, quashed the proceedings regarding other charges, and directed issuance of process against the partner for cheating and forgery.

What did the court decide?

Impugned orders quashed and set aside; process issued against the partner (Respondent No.2) under sections 420, 465, 467 IPC read with Section 34; observations are prima facie only.

M/S A.B.I. Express Pvt.Ltd Vs the State of Maharashtra — Cheque Dishonour | Bombay HC (2005)

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 CIVIL APPELLATE JURISDICTION

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 CRIMINAL WRIT PETITION NO.1631 OF 2004

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 M/s.A.B.I. Express Pvt. Ltd. .. Petitioner

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 Versus

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 State of Maharashtra & Ors. .. Respondents

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 Mr.A.J.Panicker for petitioner

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 Mr.K.K.Jadhav for respondent No.2

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 Mr.S.S.Tatkare, A.P.P. for State.

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 CORAM : S.C.DHARMADHIKARI, J.

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 DATE : 1st December 2005.

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 P.C.

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 . Rule. Respondents waive service. Heard
 learned Counsel appearing for parties.

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 . At the request of Mr.Panicker, appearing
 for petitioner, name of respondent No.3 is

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 deleted.

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 2. Rule. Mr.Jadhav appearing for respondent
 No.2 waives service. A.P.P. appears for State.
 By consent heard forthwith.

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 3. Order of learned Sessions Judge dated
 17th April 2004 is under challenge in this
 petition under Article 227 of the Constitution of
 India read with section 482 of Cr.P.C. at the
 instance of original complainant.

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 4. Petitioner is the original complainant.
 Petitioner had instituted a criminal complaint in
 the 22nd Court Esplanade Mumbai against
 respondents herein as also one Sudesh More
 (Accused No.1) who was their employee for
 offences punishable under sections 403, 406, 408,
 418, 420, 468, 471 and 477 read with 34 I.P.C.

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 5. In the complaint the allegation was that

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 the accused No.1 is their branch manager in the
 branch at Adarsh Nagar, Andheri (East). The
 company is engaged in the business of courier
 service both domestic and international. At the
 relevant time accused No.1 was branch manager.
 Respondent No.2 before me (original accused No.3)
 is a partner of one Motwani International, a firm
 which was utilising services of complainant
 company through the said branch. For such
 services rendered the accused No.3 was required
 to pay to the complainant company service
 charges. It is alleged that although the said
 firm of which accused No.3 is partner, availed of
 courier service, did not pay outstanding sum of
 Rs.7,84,887/-.

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 6. Allegation is that in the month of
 January 2000, head office of petitioner received
 a cheque for Rs.4 lakhs drawn on Bank of
 Maharashtra, Kandivali branch, Mumbai. Said
 cheque was issued, according to complainant by

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 the firm towards partial discharge of the
 aforesaid liability. On presentation, the said
 cheque was not honoured. First two reasons for
 not honouring the cheque, according to Banker
 were "drawer’s signature differ". However, upon
 the matter being taken up with the employee as
 well as the firm a fax was addressed on 13th
 January 2000 on the letterhead of the accused
 No.3/firm which reads thus:-

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 " This is to inform you that
 inspite of instructing you not to deposit
 the cheque till our further instructions
 you went forward to deposit the cheque on
 11/01/2000 without even informing us,
 since we expected some funds by
 15/01/2000 but due to your carelessness
 you have put us in a tremendous problem
 with our bankers and on your commitment
 that you will inform us before depositing
 the cheque we on that assurance gave you

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 the post dated cheque, but we were
 surprised, so please in near future do a
 proper dealing with us and redeposit the
 cheque on 18/1/2000 but do give us a call
 before depositing."

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 7. Even thereafter, the cheque was

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 dishonoured and at that time banker’s remark was
 "There is no account in the name of Motwani
 International with the said branch of Bank of
 Maharashtra".

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 8. Upon the employee being contacted and a
 notice being addressed to the accused No.3, a
 reply was addressed that the said accused has not
 signed or issued the cheque which was presented
 by petitioner complainant. On the other hand,
 the said cheque, according to them, was never
 issued by the firm from its bank account. The
 reply also states that the cheque is a forged
 one.

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 9. I am not concerned in this petition with

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 the allegations in the complaint as far as
 accused No.1, employee of petitioner is
 concerned, because it is common ground that the
 process issued against him was not in issue
 either before the Magistrate or before sessions
 Judge in the relevant proceedings. The order
 issuing process as far as this accused is
 concerned, is, therefore, unchallenged. Case has
 proceeded as far as he is concerned.

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 10. However, as far as present petition is

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 concerned, submission of Mr.Panicker is that in
 the light of a specific allegation in the
 complaint that accused No.3 and 1 colluded with
 each other and defrauded and cheated complainant,
 the learned Magistrate ought to have issued
 process against accused No.3 and set the criminal
 law in motion, more so, when learned Magistrate
 was not satisfied with the case set up in the

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 complaint and directed futher investigation.
 There is much substance in the contention of

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 Mr.Panicker Police, thereafter, recorded

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 statement of accused including accused No.3. In

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 the statement made by accused No.3, it was very
 clearly stated that the accused No.3 had
 approached accused No.1 and pointed out that he
 had no funds to meet the liabilities of
 petitioner company. He requested employee of
 petitioner to bail him out. Initially, the
 accused No.3 was not ready to go ahead with the
 understanding arrived at with accused Nos. 1 and
 2. Subsequently, it appears that all three viz.,

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 accused Nos. 1 to 3 decided that the accused
 No.2 who is wife of accused No.1 has a bank

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 account with Bank of Maharashtra, Kandivali
 Branch. It was decided that accused No.1 would

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 on the said cheque, after obtaining signature of
 the accused No.2 and the stamp of accused No.3’s
 firm, forward the same to petitioner. That such
 was the understanding is clear from the statement

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 of accused No.3. He has very clearly stated that
 the cheque was handed over to the company but it
 was dishonoured on three occasions. Thereafter,
 on one occasion on his firm’s letterhead a fax
 was addressed requesting that the cheque be
 represented. He, therefore, clearly admits that
 on the blank cheque forwarded by the accused No.1
 to him, he put name of his company and inserted
 the figure of Rs.4 lakhs and thereafter, the said
 cheque was handed over to the petitioner.

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 11. Mr.Panicker states that upon this
 statement as also the statement of accused No.1,
 recorded during investigation, sufficient
 materials were there to prima facie show that the
 accused were guilty of the charges levelled
 against them in the complaint. Learned
 Magistrate does not take any cognisance of the

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 same but states that offence is disclosed as far
 as accused No.1 and that too under section 408
 and 477A of I.P.C. He refused to issue any

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 process as far as accused No.3. Mr.Panicker
 submits that even the learned Sessions Judge has
 committed the same mistake inasmuch as learned
 Sessions Judge terms police report as superficial
 and faults the investigating machinery for not
 investigating the matter further. According to
 learned Sessions Judge, a deeper probe was
 necessary and police ought to have collected
 materials which had evidentiary value. Material
 so collected, according to learned Sessions
 Judge, is not sufficient.

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 12. Mr.Jadhav, learned Counsel appearing for
 accused No.3, on the other hand submits that the
 sessions judge as well as Magistrate were right
 in their conclusion that prima facie no offence
 is disclosed as far as accused No.3. The entire
 issue is between the petitioner and its employee.
 It is the employee who is cheated and defrauded
 the company and the customer at a branch office
 had absolutely no role to play. Although, it may

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 be true that the money is due and payable but no
 criminal offence is committed. This being the
 position and when this Court is exercising powers
 under Article 227 of the Constitution of India,
 it cannot interfere with concurrent findings of
 fact. The revisional court has gone into the
 matter and merely because another view is
 possible, this Court should not exercise its
 jurisdiction and interfere with the orders passed
 by the courts below.

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 13. With the assistance of Mr.Panicker and
 Jadhav, I have perused the complaint, statements
 and the annexures. I have also perused orders
 passed by the courts below. As observed above,
 the contentions raised by Mr.Panicker are well
 founded.

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 14. It is well settled that the Magistrate
 exercises powers upon a complaint being forwarded
 to him under section 202. The Magistrate can

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 postpone the issue of process and either enquire
 into the case himself or direct investigation to
 be made by police officer or such other person as
 he may deem fit for the purpose of deciding
 "whether or not there is sufficient ground for
proceeding". Section 203 contemplates that after
 considering the statement on oath of complainant
 and all the witnesses and the result of enquiry
 or investigation, if any, under section 202, the
 Magistrate is of the opinion that there is no
 sufficient ground for proceeding, he shall
 dismiss the complaint by recording brief reasons
 for so doing. However, what is material in this
 case is that the Magistrate has to find out, even
 after, he postponed issuance of process, as to
 whether there is sufficient ground for
 proceeding. He is not supposed to record
 conclusive finding as far as guilt or otherwise
 of the accused. That is a matter which has to be
 gone into at the stage of trial. When the
 Magistrate in the present case, despite materials

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 being produced to show that there is sufficient
 ground for proceeding, does not proceed against
 all accused and the complainant aggrieved by such

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 action, invokes revisional jurisdiction,
 revisional court is also expected to find out as
 to whether there is sufficient ground for
 proceeding. That, revisional jurisdiction is
 meant for satisfying oneself as to the
 correctness, legality or propriety of finding,
 sentences or order recorded or passed and as to
 the regularity of the proceedings, is not
 disputed before me. In the present case, all
 that the revisional court was required to do was
 to scrutinise whether the Magistrate erred in
 only restricting issuance of process as far as
 employee - accused No.1. The complainant was
 also a revisional petitioner. It was alleging
 that there are sufficient grounds for proceeding
 also against accused No.3. In fact, it was the
 grievance of petitioner that there is material to
 proceed against wife of the employee. However,

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 that aspect need not be gone into as the wife of
 employee who was impleaded as respondent No.3 to
 this petition has been dropped.

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 15. Now what remains is whether sessions
 judge was in error as far as his observations
 with regard to the exercise undertaken by the
 Magistrate about proceeding against accused No.3.
 In para 9 of the order the learned Judge has gone
 into materials collected by the police, as if he
 is called upon to go into their evidantiary
 value. Further in paras 10 and 11, after setting
 out the stand of the accused No.3, learned Judge
 proceeds to hold in para 12 that even the fax on
 the letterhead cannot be taken assistance of, as
 the police have not taken steps to verify as to
 who had written this letter and whether the
 letterhead used for this purpose really belongs
 to respondent No.2.

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 16. In my view, the stage at which this has

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 to be gone into is not present one. For the
 purpose of finding out whether sufficient cause
 is made out to proceed in the matter today, there
 is a fax on the letter head. Whether it is
 signed by person authorised to sign it or whether
 it has been signed on a letterhead belonging to
 firm or not is something which the Court below
 will have to go at a later stage. Similarly,
 when there is statement of accused No.2
 corroborating that a letter/ fax was addressed on
 the letterhead of company, it was not for the
 courts below to comment on its evidentiary value.
 That it has so commented is clear from para 13 of
 the Sessions Court’s order.

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 17. As the revisional court failed to
 exercise its jurisdiction vested in it by law the
 result is manifest injustice. In the instant
 case, learned Sessions Judge ought to have
 satisfied himself as to whether there was
 sufficient ground for proceeding further.

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 Instead of finding out this aspect he proceeded
 to go into the materials collected with an
 intention of holding whether accused No.2 could
 be convicted or whether the charge could be
 brought home against him. That was not the
 purpose of exercising revisional jurisdiction at
 this stage.

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 18. In my view, impugned order, therefore,
 suffer from apparent error on the face of record
 and could safely be termed as perverse. There
 was sufficient ground for proceeding against
 accused No.2. However, from reading of the
 complaint averments and the materials collected
 till date, a case is made out for proceeding
 further, insofar as section 420, 465, 467 of
 I.P.C. read with 34 thereof and not other
 sections invoked by the petitioner complainant.
 Magistrate, therefore, to issue process against
 accused No.2 calling upon him to answer as to why
 further steps in accordance with law should not

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 be taken in pursuance of the complaint.

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 19. Impugned orders are, therefore, quashed
 and set aside. The order issuing proceess would
 stand substituted and in addition to accused No.1
 process should be issued now even against
 respondent No.2 in the said complaint. Further
 it is clarified that all observations in this
 order are prima facie and made for the purpose of
 finding out as to whether there is sufficient
 ground to proceed and shall not influence the
 court at the stage of trial. All contentions of

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 accused No.2 on merits are expressly kept open.

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 (S.C.DHARMADHIKARI, J)

M/S A.B.I. Express Pvt.Ltd v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

M/S A.B.I. Express Pvt.Ltd v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

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