The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC NO.3232 of 2016 (In the matter of application under Section 482 of the Criminal Procedure Code, 1973). Komal Murjani … Petitioner -versus- State of Orissa and Others … Opposite Parties CRLMC NO.3233 of 2016 Komal Murjani … Petitioner -versus- State of Orissa and Others … Opposite Parties CRLMC NO.3243 of 2016 Komal Murjani … Petitioner -versus- State of Orissa and Others … Opposite Parties CRLMC NO.3244 of 2016 Komal Murjani … Petitioner -versus- State of Orissa and Others … Opposite Parties CRLMC NO.3245 of 2016 Komal Murjani … Petitioner -versus- State of Orissa and Others … Opposite Parties CRLMC NO.3259 of 2016 Komal Murjani … Petitioner -versus- State of Orissa and Others … Opposite Parties CRLMC Nos.3232, 3233, 3243, 3244, 3245, 3259 & 3260 of 2016 Page 1 of 14 CRLMC NO.3260 of 2016 Komal Murjani … Petitioner -versus- State of Orissa and Others … Opposite Parties For Petitioner
Legal Reasoning
: Mr. S.K. Purohit, Advocate For Opposite Parties : Mr. S.S. Pradhan, AGA [O.P. No.1] CORAM: JUSTICE G. SATAPATHY DATE OF JUDGMENT :14.08.2023 G. Satapathy, J. 1. One basic and common question of law since being raised by the sole petitioner in each of the CRLMC filed U/S.482 of Cr.P.C. with prayer to quash the impugned order passed by the learned J.M.F.C., Rural, Rourkela taking cognizance of offence U/S. 138 of Negotiable Instruments Act, 1881 (in short, “NI Act”) and issuing process against her in each of the seven complaints, the same were heard together and CRLMC Nos.3232, 3233, 3243, 3244, 3245, 3259 & 3260 of 2016 Page 2 of 14 disposed of by this common order with consent of learned counsel for the petitioner. 2. This Court wishes to clarify that none appears for the complainant(s)-respondent(s) despite service of notices on them as confirmed in postal tracking report. 3. Facts in common in all the CRLMCs except 3259 and 3260 of 2016, are that Opposite Party No.2 (OP-2) was a partnership firm with OP-3 and OP-4 as its partners by having Office at Goibhanga, Kalunga in the District of Sundargarh and was dealing in the business of casting and allied matters at the relevant time, whereas the petitioner was the Director and OP- 6 was the Managing Director of OP-5, a registered Company, who was having its registered Office at Kolkata and local Office at Sambalpur and there were some transactions between OP-2 and OP-5. It was averred in all the CRLMCs except in 3259 and 3260 of 2016 that OP-6 was the authorized signatory and operating the business of OP-5, whereas petitioner CRLMC Nos.3232, 3233, 3243, 3244, 3245, 3259 & 3260 of 2016 Page 3 of 14 was actively participating and controlling the affairs of the Company (OP-5) and on the verbal order, OP-2 supplied certain quantity of C.I., lngot Mould to OP-5 each on different dates at specified rate and in lieu of payment, OP-6 issued cheques for OP-5 in favour of OP-2 for each transaction, but such cheques on presentation with Bankers of OP-2 returned unpaid being dishonoured with endorsement “exceeds arrangements” or “insufficient funds” giving rise to cause of action to OP-2 to 4 against the petitioner, OP-5 and 6 after they refused to receive the demand notices issued by OP-2 to 4. Similarly, the facts in CRLMC No.3259 & 3260 of 2016 are, OP-2 was a proprietorship firm and was represented by its proprietor Jitendra Singh by having its office at Vedvyas, Rourkela and it was dealing with business of casting and allied matters at the relevant time, whereas the petitioner was the Director and OP-4 was the Managing Director of OP- 3, a registered Company, who was having its CRLMC Nos.3232, 3233, 3243, 3244, 3245, 3259 & 3260 of 2016 Page 4 of 14 registered Office at Kolkata and local Office at Sambalpur and there were some transactions between OP-2 and OP-3. According to OP-2, OP-4 is the authorized signatory and operating the business of OP-3, whereas the petitioner was actively participating and controlling the affairs of the Company (OP-3) and on the verbal order, OP-2 supplied W.R.P. BF Grade Scrap for certain value vide Tax Invoice No.019 dated 06.05.2009 and Tax Invoice Nos.001 to 006 on different dates, and in lieu of payments, OP-4 being authorized signatory of OP- 3 issued some cheques in favour of OP-2 for each transaction, but such cheques on presentation with Bankers of OP-2 returned unpaid being dishonoured for closure of account of OP-3 giving rise to cause of action to OP-2 against petitioner, OP-3 and OP-4. This is how seven complaints were come to be filed by the complainants against M/s. Mamta Ispat Pvt. Ltd. (Accused No-1), Deepak Kumar Murjani (Accused No-2) and petitioner (Accused CRLMC Nos.3232, 3233, 3243, 3244, 3245, 3259 & 3260 of 2016 Page 5 of 14 No.3). The data’s relating to each complaint is detailed as under in a tabular format: CRLMC No.3232 of 2016 Complt. No. Complainants Cheque No. & Date Amount Date of Demand Notice and its Status I.C.C. Case No.677/2009 OP Nos.2, 3 & 4 Cheque Rs.3,88,452/- Dt-24.10.2009 No.000945 Dt-13.10.2009 Status-refused on 28.10.2009 CRLMC No.3233 of 2016 Complt. No. Complainants Cheque No. & Date Amount Date of Demand Notice and its Status I.C.C. Case No.676/2009 OP Nos.2, 3 & 4 Cheque Rs.4,00,262/- Dt-24.10.2009 No.000944 Dt-08.10.2009 Status-refused on 28.10.2009 CRLMC No.3243 of 2016 Complt. No. Complainants Cheque No. & Date Amount Date of Demand Notice and its Status I.C.C. Case No.679/2009 OP Nos.2, 3 & 4 Cheque Rs.4,04,562/- Dt-24.10.2009 No.000943 Dt-06.10.2009 Status-refused on 28.10.2009 CRLMC No.3244 of 2016 Complt. No. Complainants Cheque No. & Date Amount Date of Demand Notice and its Status I.C.C. Case No.678/2009 OP Nos.2, 3 & 4 Cheque Rs.4,06,190/- Dt-24.10.2009 No.000940 Dt-24.09.2009 Status-refused on 28.10.2009 CRLMC No.3245 of 2016 Complt. No. Complainants Cheque No. & Date Amount I.C.C. Case No.675/2009 OP Nos.2, 3 & 4 Cheque Nos.000942 & 000941 Dt-03.10.2009 & 02.10.2009 Rs.4,09,178/- & Rs.3,84,758/- Date of Demand Notice and its Status Dt-24.10.2009 Status-refused on 28.10.2009 CRLMC No.3259 of 2016 Complt. No. Complainants I.C.C. Case No.6/2010 OP No.2 Cheque No. & Date Cheque No.123063 Amount Date of Demand Notice and its Status Rs.2,15,575/- Dt-07.11.2009 Status-refused on Sl. No. 1 Sl. No. 1 Sl. No. 1 Sl. No. 1 Sl. No. 1 Sl. No. 1 CRLMC Nos.3232, 3233, 3243, 3244, 3245, 3259 & 3260 of 2016 Page 6 of 14 Dt-21.05.2009 12.11.2009 CRLMC No.3260 of 2016 Sl. No. 1 Complt. No. Complainants I.C.C. Case No.8/2010 OP No.2 Cheque No. & Date Cheque Nos. 120298, 120299, 123000,123001, & Dt-25.04.2009, Dt. 26.04.2009, Dt. 27.04.2009, Dt. 28.04.2009 Date of Demand Notice and its Status Dt. 07.11.2009 Status-refused on 12.11.2009 Amount Rs.1,50,000/-, Rs.1,50,000/-, Rs.1,50,000/- & Rs.1,67,774/- Total amount (Rs.6,17,774/- 4. After being satisfied with materials and documents produced by the complainants in each complaint together with compliance of provisions of NI Act, the learned J.M.F.C.(R), Panposh by the impugned orders, took cognizance of offence and issued process against petitioner, OP-5 and 6, which are listed below in tabular format: Sl. No.
Decision
Date of impugned Order 1 2 3 4 5 6 7 02.12.2015 in 1CC No. 677 of 2009 08.09.2010 in 1CC No. 676 of 2009 27.06.2011 in 1CC No. 679 of 2009 29.03.2010 in 1CC No. 678 of 2009 22.12.2011 in 1CC No. 675 of 2009 08.12.2010 in 1CC No. 06 of 2010 29.07.2015 in 1CC No. 08 of 2010 Cog. of Offence under NI Act Section 138 Nature of Process issued summons Challenged in CRLMC No. 3232/2016 Section 138 summons 3233/2016 Section 138 summons 3243/2016 Section 138 summons 3244/2016 Section 138 summons 3245/2016 Section 138 summons 3259/2016 Section 138 summons 3260/2016 CRLMC Nos.3232, 3233, 3243, 3244, 3245, 3259 & 3260 of 2016 Page 7 of 14 5. The short ground under which the petitioner challenges each of the impugned order is, she being a mere Director for name sake had no liability under law in absence of specific averments made in each of the complaint the role played by her in the affairs of OP-5/OP-3 to construe as “she was in charge of and responsible to the company (OP-5/OP-3) for the conduct of its business” as mandatorily required U/S.141 of NI Act. 6. In support of challenge, Mr. S.K. Purohit, learned counsel for the petitioner in all the CRLMCs, has relied upon the decisions in S.P. Mani and Mohan Dairy Vrs. Dr. Snehalatha Elangovan; 2022 SCC Online SC 1238 and Sunita Palita Vrs. M/s. Panchami Stone Quarry; 2022 SCC Online SC 945. None appears for the contesting respondent to counter the submission made for the petitioner. 7. For clarifying the challenge of the petitioner, this Court considers it apt to refer to the decision CRLMC Nos.3232, 3233, 3243, 3244, 3245, 3259 & 3260 of 2016 Page 8 of 14 relied upon by the petitioner in S.P. Mani (supra) wherein after noticing the authority rendered by the Apex Court in different decisions including the other relied decision by the petitioner in Sunita Palita (supra), the Apex Court has authoritatively laid down its observation in Paragraphs-44 to 46, which would answer the challenge of the petitioner, are extracted thus: is notice “44. We may also examine this appeal from a different angle. It is not in dispute, as noted above, that no reply was given by the respondent to the statutory notice served upon her by the appellant. In the proceedings of the present type, it is essential for the person to whom statutory issued under Section 138 of the NI Act to give an appropriate reply. The person concerned is expected to clarify his or her stance. If the person concerned and has incontrovertible material to establish that he or she has no role to play in the affairs of the company/firm, then such material should be highlighted in the reply to the notice as a foundation. If any such foundation is laid, the picture would be more clear before the eyes of the complainant. The complainant would come to know as to why the person to whom he has issued notice says that he is not the responsible the dishonour of unimpeachable some for CRLMC Nos.3232, 3233, 3243, 3244, 3245, 3259 & 3260 of 2016 Page 9 of 14 cheque. Had the respondent herein given appropriate reply highlighting whatever she has sought to highlight before us then probably the complainant would have undertaken further enquiry and would have tried to find out what was the legal status of the firm on the date of the commission of the offence and what was the status of the respondent in the firm. The object of notice before the filing of the complaint is not just to give a chance to the drawer of the cheque to rectify his omission to make his stance clear so far as his liability under Section 138 of the NI Act is concerned. 45. Once the necessary averments are made in the statutory notice issued by the complainant in regard to the vicarious liability of the partners and upon receipt of such notice, if the partner keeps quiet and does not say anything in reply to the same, then the complainant has all the reasons to believe that what he has stated in the notice by been the noticee. In such circumstances what more the complainant to say in the complaint. is expected of accepted has 46. When in view of the basic averment process is issued the complaint must proceed against the Directors or partners as the case may be. But, if any Director or Partner wants the process to be quashed by filing a petition under Section 482 of the Code on the ground that only a bald averment is made in the complaint and that he is really not concerned with the issuance of the cheque, he must in order to persuade the High Court to quash the CRLMC Nos.3232, 3233, 3243, 3244, 3245, 3259 & 3260 of 2016 Page 10 of 14 to substantiate process either furnish some sterling incontrovertible material or acceptable his circumstances contention. He must make out a case that making him stand the trial would be an abuse of process of court. He cannot get the complaint quashed merely on the ground that apart from the basic averment no particulars are given in the complaint about his role, because ordinarily the basic averment would be sufficient to send him to trial and it could be argued that his further role could be brought out in the trial. Quashing of a complaint is a serious matter. Complaint cannot be quashed for the asking. For quashing of a complaint, it must be shown that no offence is made out at all against the Director or Partner.” 8. Examining the cases at hand keeping in view the principles settled by the Apex Court in the decision relied upon by the petitioner in S.P. Mani (supra) as extracted in the preceding paragraph, there appears no dispute about clear and specific averments made in each of the complaint that the demand notice issued to the petitioner, OP-5/OP-3 and OP-6/OP-4 was returned back to the complainant(s) with postal endorsement “refused”, however, the petitioner had not clarified as to what CRLMC Nos.3232, 3233, 3243, 3244, 3245, 3259 & 3260 of 2016 Page 11 of 14 were the contents of such notice issued to them in each complaint, which document(demand notice) was filed by the complainant at the time of institution of each complaint against the petitioner, OP-5/OP-3 and OP-6/OP-4 as accused persons. Nor is it disputed by the petitioner in the CRLMCs to have refused to receive such demand notice. Besides, the petitioner nowhere in any of the CRLMCs has made averments to dispute about her husband (OP-6/OP-4) to be the authorized signatory of the company (OP-5/OP-3) for issuing cheques. The complaint enclosed by petitioner also describes “Accused No.3 Komal Murjani was its (M/s. Mamta Ispat Pvt. Ltd.) Director actively participating in and controlling the affairs of the Accused No.1-company (OP-5/OP-3).” The above averment made in each of the complaint appears to be inconsonance with the statutory averment required to be made as per Section 141(1) of NI Act, which mandates that: CRLMC Nos.3232, 3233, 3243, 3244, 3245, 3259 & 3260 of 2016 Page 12 of 14 the time “If the person committing an offence under Section 138 is a company, every person the offence was who, at committed, was in-charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be punished proceeded accordingly.” against and 9. Admittedly, seven complaints were made against the petitioner, OP-5/OP-3 and OP-6/OP-4 (Accused No.1 to 3) for dishonor of cheques on different dates, which was never disputed by the petitioner. On cumulative reading of the above facts, it cannot be said that the petitioner was a mere name lender as Director of OP-5/OP-3(Accused No.1). 10. In view of the above situation and facts and taking into consideration the law laid down by the Apex Court in S.P. Mani (supra) as referred to above, the challenge made by the petitioner does not merit consideration and, thereby, the impugned order by no stretch of imagination can be construed as an abuse of process of Court and liable to be quashed. CRLMC Nos.3232, 3233, 3243, 3244, 3245, 3259 & 3260 of 2016 Page 13 of 14 11. In the result, all the CRLMCs indicated above stand dismissed, but in circumstance there is no order as to costs. Since the complaints involved in these cases are of the year 2009/2010, the learned trial Court is requested to proceed with each of the complaints as expeditiously as possible and dispose of the same preferably within a period not later than six months of receipt of copy of this order. (G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 14th of August, 2023/Subhasmita Signature Not Verified Digitally Signed Signed by: SUBHASMITA DAS Designation: Jr.Stenographer Reason: Authentication Location: High Court of Orissa Date: 16-Aug-2023 10:58:41 CRLMC Nos.3232, 3233, 3243, 3244, 3245, 3259 & 3260 of 2016 Page 14 of 14