2013 ALL MR (Cri) 1554
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)

K.U. CHANDIWAL, J.

Ritesh S/O. Deoram Patil Vs. Dhanvantari Urban Co-Op. Credit Society Ltd. & Anr.

Criminal Application No.3298 of 2012,Criminal Application No. 3299 of 2012

22nd January, 2013

Petitioner Counsel: Mr. V.D. SALUNKE, Mr. S K. NASEER
Respondent Counsel: Mr. D.R. KORDE

Negotiable Instruments Act (1881) Ss.138, 141 - Dishonour of cheque - Offence by company - Issue of process - Company and its chairman-cum-director arrayed as accused - Defence that chairman-cum-director had resigned subsequent to issuance of the cheque - Held, chairman-cum-director is vicariously liable to affairs of company as he was at the material time responsible to the affairs of society as a Chairman and he was drawer of the cheque - Any subsequent change in status will not be detrimental to the complainant - Issue of process, not interfered with. (Paras 11, 15, 18)

Cases Cited:
Aneeta Hada Vs. Godfather Travels & Tours pvt. Ltd., 2012 ALL SCR 1424=2003 (2) Bom.C.R.(Cri.) 24 (SC) : 2012 (5) SCC 661 [Para 7,10]
P.C. Agarwala Vs. Payment of Wages Inspector, M.P. And Ors., 2006(4) ALL MR 98 (S.C.)=AIR 2006 SC 3576 [Para 7,19]
Harshendra Kumar D. Vs. Rebatilata Koley and Ors., 2011 ALL MR (Cri) 955 (S.C.)=(2011) 3 SCC 351 [Para 12]
Abasaheb Yadav Honmane Vs. State of Maharashtra, 2008 ALL MR (Cri) 952 (F.B.)=2008 (2) Mh.L.J. 856 [Para 13]
State of Karnataka Vs. L. Muniswamy and Ors., AIR 1977 SC 1489 [Para 14]


JUDGMENT

JUDGMENT :- Heard both the Criminal Applications finally. No notice to respondent No.1 - Credit Co.op. society.

2. The applicant has questioned process under Section 138 of the Negotiable Instruments Act (for short, the Act) dated 17.10.2007 issued by learned Judicial Magistrate First Class, Bhusawal in both the cases.

3. The applicant has not resorted to the available remedy of revision before the learned District Judge.

4. The respondent No.1 - Dhanvantari Urban Co-op. Credit Society Ltd., Bhusawal had invested an amount of Rs.1,55,00,000/- with Vyankat Urban Credit Co.op. Society Ltd. (for short, Vyankat society) on 27th March, 2006. The deposit was to accrue interest @ 10.5%. An advance cheque in respect of said deposit and also accrued interest of Rs.11,43,756/- was issued by the applicant - Ritesh on 28.3.2006 in the capacity as Chairman of Vyankaresh society.

5. After expiry of period of the deposit, the said cheques were deposited in Jalgaon Janata Co-operative Society Ltd., Branch Bhusawal for encashment. Both the cheques were dishonoured with endorsement "Refer to drawer, funds insufficient". This was followed with statutory notice. However, it was not accepted and returned as "not claimed" on 22.8.2007. Hence, complaint, petition, and as stated above, issuance of the process.

6. The bone of contention of Mr. Salunke, the learned Counsel for the applicant, is, on 4.4.2006, and 25.5.2006 the applicant has resigned from the post of Chairman and Director respectively of the Vyankat society. New elections were held and thereafter, by notification in local newspaper dated 12.6.2006 (notice dated 10.6.2006), the names of new office-bearers and Directors of Vyankaresh society are informed to the public and consequently, no liability could be saddled upon the applicant - Ritesh. On 17.10.2007, which is the date of the verification, the applicant was not Chairman of the society. The transaction was with the Vyankat society and it is not arrayed as accused. Consequently, no cause of action arose.

7. Learned Counsel for the applicant has placed reliance to the following judgments:

(a) Aneeta Hada Vs. Godfather Travels & Tours pvt. Ltd. 2003(2) Bom.C.R.(Cri.) 24 (S.C.) : 2012 (5) SCC 661 : [2012 ALL SCR 1424];

(b) P.C. Agarwala Vs. Payment of Wages Inspector, M.P. And Ors. AIR 2006 SC 3576 : [2006(4) ALL MR 98 (S.C.)];

(c) Judgment of the learned Single Judge of this Court in group of writ petitions, one of the petition being WP No.5223/2009 (decided on 22nd December, 2010)

8. The learned Counsel has also canvassed, in the light of definition of 'officer' under Section 2(20) of the Maharashtra Co-operative Societies Act, 1960, there cannot be vesting/fastening of responsibility upon the applicant.

9. Basically, the subject complaint under Section 138 of the Negotiable Instruments Act, is filed against Vyankat society, through an authorized signatory - Ritesh Deorao Patil, Chairman of the Vyankat society. The accused No.2 - is Abhay Jayant Shravage, Manager of Vyankat society, consequently, it cannot be said that society is not prosecuted.

10. The ThreeJudges Bench judgment in the matter of Aneeta Hada, [2012 ALL SCR 1424] (cited supra), conceived the situation, where, a company/society is not arrayed as accused in terms of Section 138 or 141 of the Act. In that event, it was held, " liability of Director flows necessarily from the company. Company is a juristic person and in the absence of company arrayed as accused, there could not be a liability solely fastened against the Director. The text of the complaint is narrated herein before. In unequivocal terms, Vyankat society is arrayed as accused. The name of the applicant is also referred as accsued and as authorized signatory. Applicant was a drawer of the cheques.

11. The applicant's resignation subsequent to issuance of the cheque will not dilute primary liability to answer as drawer of the cheque issued in favour of the payee in discharge of legally enforceable liability. The verification, to which reference is given, cannot be faulted as there could not be any communication to the original complainant in respect of change of status of the applicant. The public notice in newspaper, has no legal sanctity. The resignation and resolution, to which reference is given by the learned Counsel, are not a public document. If they stand in the definition of 'public document', the picture would have been quite different.

12. The legal position is also explained in the matter of Harshendra Kumar D. Vs. Rebatilata Koley and Ors. (2011) 3 SCC 351 : [2011 ALL MR (Cri) 955 (S.C.)], by the Hon'ble Supreme Court in respect of exercise of powers by the Court. The Hon'ble Lordships observed that an Ex-Director cannot be made accountable and fastened with liability for anything done by company after acceptance of his resignation by company. In paragraph 25, it is observed, " It is fairly settled now that while exercising inherent jurisdiction under Section 482 or revisional jurisdiction under Section 397 of the Code in a case where complaint is sought to be quashed, it is not proper for the High Court to consider the defence of the accused or embark upon an enquiry in respect of merits of the accusations. However, in an appropriate case, if on the face of the documents - which are beyond suspicion or doubt - placed by the accused, the accusations against him cannot stand, it would be travesty of justice if the accused is relegated to trial and he is asked to prove his defence before the trial court. In such a matter, for promotion of justice or to prevent injustice or abuse of process, the High Court may look into the materials which have significant bearing on the matter at prima facie stage."

13. The Full Bench of this Court, way back in 2008, in the matter of Abasaheb Yadav Honmane Vs. State of Maharashtra - 2008 (2) Mh.L.J. 856 : [2008 ALL MR (Cri) 952 (F.B.)], has also clarified the legal position.

14. The ThreeJudges Bench of the Hon'ble Supreme Court in the matter of State of Karnataka Vs. L.Muniswamy and Ors. AIR 1977 SC 1489, observed, "In the exercise of the wholesome power under Section 482 Cr.P.C., the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice requires that the proceeding ought to be quashed."

15. Section 2(20) of the Maharashtra Co-operative Societies Act, 1960, in fact, embrace in its sweep term 'officer' to mean and include, a person elected or appointed by a society to any office of such society according to its by-laws; and includes a chairman, vice-chairman, president, vice-president, managing director, manager, secretary, treasurer, member of the committee, and any other person elected or appointed under this Act, the rules or the by-laws, to give directions in regard to the business of such society. In the light of this definition, the status of the applicant, vis-a-vis, Vyankat society, is primarily indicated. The applicant is vicariously liable to affairs of company as he was at the material time responsible to the affairs of society as a Chairman and he was drawer of the cheque. Any subsequent change in status will not be detrimental to the complainant.

16. Learned counsel interrupts and says, he has also referred to section 73(1) of the Maharashtra Co-operative Societies Act.

17. At page 30 of the petition, a statutory notice in terms of Section 73(3) of the Maharashtra Co-operative Societies Act, is enclosed while page 31 of the petition refers the names of newly elected body members.

For satisfaction of the learned Counsel, Section 73(1) is reproduced, as under:

"73(1) The management of every society shall vest in a committee, constituted in accordance with this Act, the rules and bye-laws, which shall exercise such powers and perform such duties as may be conferred or imposed respectively by this Act, the rules and the bye-laws."

18. Reading both the provisions, it does not attract primarily that there is no liability of the applicant. The scheme and purport of Section 138 and 141 of the Negotiable Instruments Act, should be properly digested before embarking to no liability.

19. In the matter of P.C. Agarwala, [2006(4) ALL MR 98 (S.C.)] (cited supra), the liability of the Directors was fixed in respect of payment of wages of the employees. The Apex court did not approve the same, as the term "occupier" used in Factories Act, has not been taken care of by the High Court.

20. In the Writ Petition No.5223/2009, this Court was dealing with directions issued by Consumer Forum in different proceedings, holding the Directors of the Credit Co-operative Society personally liable to refund deposits of the investors. These judgments, in the above backdrop of the events, will not apply to the present proceedings.

21. Testing on these parameters and touchstone, the factual matrix illustrated herein above does not call for interference in the order of issue of process.

22. The Criminal Applications lack merit, dismissed. The observations are prima facie in nature.

Applications dismissed.