2010 ALL MR (Cri) 1157
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
A.B. CHAUDHARI, J.
Shyamrao S/O. Narayanrao Borghare Vs. Narendramal S/O. Mishrimal Bafna
Criminal Revision No.171 of 2008,Criminal Revision No.172 of 2008
16th February, 2010
Petitioner Counsel: Shri. N. P. HIWASE, Ms. MEENA N. HIWASE
Respondent Counsel: Shri. A. P. WACHASUNDER
Negotiable Instruments Act (1881) Ss.138, 141 - Dishonour of cheque - Complaint - Signatory of the cheques in question also Director of the Company - Cannot escape the liability under S.138 - Conduct of non-applicant in not paying the applicants/workmen their hard earned wages but making them move from Court to Court - Court inclined to award suitable costs to the applicants/workman. 2007 ALL MR (Cri) 1741 (S.C.) - Ref. to. (Para 10)
S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla, 2007 ALL MR (Cri) 870 (S.C.)=2007(4) Mh.L.J. 452 (SC) [Para 5,8]
Everest Advertising (P) Ltd. Vs. State Govt. of NCT of Delhi, 2007 ALL MR (Cri) 1741 (S.C.)=2007(5) SCC 54 [Para 5]
N. Rangachari Vs. Bharat Sanchar Nigam Ltd., 2007 ALL MR (Cri) 1437 (S.C.)=2007(5) SCC 108 [Para 5,9]
3. The applicants in both these revisions had filed their respective complaints under Section 138 of the Negotiable Instruments Act in the Court of Magistrate in respect of the dishonor of cheques issued in their favour by the non-applicant for the amount of Rs.1,25,373/- and Rs.80,559/- vide cheques dated 19.2.2007 and 16.2.2007 respectively. The revision applicants were working in the Industry, namely, Coventry Spring Engineering Limited at Nagpur. The non-applicant had signed both these cheques in his capacity as the Director of the said Company, which eventually were dishonoured. The cheques were towards the unpaid wages of both the applicants. The Magistrate upon receipt of the complaint and the documentary and oral evidence placed before him made a reasoned order and issued process against the non-applicant by order dated 16.11.2007. The non-applicant filed two revisions against the said two orders in the said two criminal complaint cases before the Additional Sessions Judge-8, Nagpur. The Additional Sessions Judge-8, Nagpur held that there was no averment in the complaint that the non-applicant/accused, who is Director of the Company was responsible for day-to-day transaction of the Company and was managing and looking after the Company. It is on this basis, he allowed both revisions and set aside the order of issuance of process in both these cases. Hence, these revisions by the two workers.
4. Learned Counsel for the applicants in both the revision applications argued that there were averments in the complaint, which satisfy the requirement of Section 141 of the Negotiable Instruments Act and therefore, the revisional Court has factually committed an error in coming to the conclusion that the non-applicant/Director of the Company was not responsible.
5. Per contra, learned Counsel for the non-applicant/accused argued that these being second revisions, the bar of Section 397(3) of the Code of Criminal Procedure would apply and these revisions are, therefore, liable to be dismissed as not maintainable, they being second revisions. He then argued that this case is covered by the decision of the Supreme Court in the case of S.M.S. Pharmaceuticals Ltd.Vs. Neeta Bhalla and another, reported in 2007(4) Mh.L.J. 452 :[2007 ALL MR (Cri) 870 (S.C.)], Supreme Court, in the case of Everest Advertising (P) Ltd. Vs. State Govt. of NCT of Delhi and others, reported in 2007(5) Supreme Court Cases 54 : [2007 ALL MR (Cri) 1741 (S.C.)] and in the case of N. Rangachari Vs. Bharat Sanchar Nigam Ltd., reported in 2007(5) Supreme Court Cases 108 : [2007 ALL MR (Cri) 1437 (S.C.)].
6. On the basis of those Supreme Court judgments, he argued that the order of the revisional Court is clearly supportable and no error of law has been committed by the learned Sessions Judge and therefore, no interference could be made by this Court. He then argued that the Company has started proceedings before Debt Recovery Tribunal against the attachment of properties of the Company and the non-applicant as well as Company were pulled to get relief after which the payments could be made to all the workers including the present applicants towards their wages. He then argued that the Company was not made a party to the complaint and that defect could not be cured and therefore, the revisional Court was right in dismissing the complaints filed by the complainants/applicants.
7. I have gone through the impugned revisional order so also the complaints and the other documents including cheques placed on record. It would be proper to quote relevant averment from the complaints, which reads thus in paragraph No.1 of the complaints.
"The accused was the employer of the complainant and the complainant was working in the company of the accused. The accused was one of the directors of the company, named as, Coventry Spring Engineering Company Limited and he was holding account and was making payments of the labourers and workers. He was having authority to make payments and issue cheques on his name to the workers.
That the complainant was working in the company of the accused and when the company was closed by the accused the total wages of Rs.1,25,373/- (Rs. One Lac Twenty Five Thousands Three Hundreds Seventy Three) and Rs.80,559/- (Rs. Eighty Thousands Five Hundreds and Fifty nine) are due on the accused. For the payments of the same the accused had issued cheques."
8. Perusal of both cheques show that they were issued in favour of both the applicants singed by Director i.e. non-applicant for Coventry Spring Engineering Limited and perusal of the above averments and the signature on cheques clearly show that both the cheques were signed by the non-applicant/accused in the capacity of the Director of the Company. The above averments, in my opinion, are enough to fasten the liability on the non-applicant as he is the signatory to the cheques and the averment shows that it is he, who was making payments to labourers and workers during the course of functioning of the Company. It can, therefore, be easily said that it was the non-applicant/accused who was fully in-charge of the affairs of the Company. Thus, finding recorded by the revisional Court, contrary to the above, is factually wrong and perverse. That apart, at the trial, the complainants are entitled to amplify the above pleadings in the complaints with necessary documentary as well as oral evidence and therefore, it would be premature to say that the non-applicant was not responsible. Having regard to the three Judges decision of the Supreme Court in the case of S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla and another, 2007 ALL MR (Cri) 870 (S.C.) (supra) the Honble Supreme Court in paragraph No.10-19 (c) observed thus.
"10 -19 (c). The answer to Question (c) has to be in the affirmative. The question notes that the Managing Director or Joint Managing Director would be admittedly in-charge of the company and responsible to the company for the conduct of its business. When that is so, holders of such positions in a company become liable under section 141 of the Act. By virtue of the office they hold as Managing Director or Joint Managing Director, these persons are in-charge of and responsible for the conduct of business of the company. Therefore, they get covered under section 141. So far as the signatory of a cheque which is dishonoured is concerned, he is clearly responsible for the incriminating act and will be covered under sub-section (2) of section 141."
9. The aforesaid paragraph No.10-19 (c) was the answer given by the two Judge decision of the Supreme Court in the said case. This decision was rendered on 20.2.2007 and in my opinion, the said answer in paragraph No.10-19 (c) is squarely applicable in the instant case since the non-applicant is a signatory of the cheques, apart from the averments, which I have already reproduced above which clearly bring the non-applicant in the net. Thereafter, on 19.4.2007 another two judge decision of the Supreme Court in the case of N. Rangachari Vs. Bharat Sanchar Nigam Ltd. [2007 ALL MR (Cri) 1437 (S.C.)] (supra) was rendered. The relevant paragraph No.21 from the said decision is reproduced below.
"21. A person normally having business or commercial dealings with a company, would satisfy himself about its creditworthiness and reliability by looking at its promoters and Board of Directors and the nature and extent of its business and its memorandum or articles of association. Other than that, he may not be aware of the arrangements within the company in regard to its management, daily routine, etc. Therefore, when a cheque issued to him by the company is dishonoured, he is expected only to be aware generally of who are in charge of the affairs of the company. It is not reasonable to expect him to know whether the person who signed the cheque was instructed to do so or whether he has been deprived of his authority to do so when he actually signed the cheque. Those are matters peculiarly within the knowledge of the company and those in charge of it. So, all that a payee of a cheque that is dishonoured can be expected to allege is that the persons named in the complaint are in charge of its affairs. The Directors are prima facie in that position."
10. In view of the above discussion, it is clear that the non-applicant who is the signatory of cheques in both the cases, who is also Director of the Company cannot escape the liability. It is unfortunate that the non-applicant who has issued cheques to the applicants towards their hard earned wages is now refusing to make payments thereof to the workers. The cheques are of the dates 19.2.2007 and 16.2.2007 and the poor workmen have yet not received the same. The aforesaid legal position and the fact that the non-applicant is signatory of the said cheques cannot be said to be not in the knowledge of the non-applicant, who has endeavoured to prolong the said two criminal cases on such flimsy grounds. The workmen cannot be expected to fight with the non-applicant/Industrialist without any means. Thus, looking to the conduct of the non-applicant in not paying them their hard earned wages but making them move from the Court to Court will have to be taken note and consequently, this Court inclined to award suitable costs to the applicants/workmen. Hence, I make the following order.
(i) Both criminal revisions are partly allowed.
(ii) The impugned judgments and orders in Criminal Revision No.257/2008 and 256/2008, dated 18.7.2008, passed by the Additional Sessions Judge-8, Nagpur are set aside with costs of Rs.10,000/- (Rupees Ten Thousand Only) in each case, payable to the applicants workers within a period of four weeks from today by depositing the same in the trial Court, which shall be a precondition.
(iii) Proceedings in Criminal Complaint (Summary Case) Nos.15296/2007 and 15292/2007 are restored on the file of the trial Court for fresh disposal and trial in accordance with law.
(iv) The complainants shall be allowed to amend their complaints as permissible in law.
(v) The trial Court shall take up the criminal cases for hearing and final disposal and decide the same finally within a period of six months from today.