319 cr.p.c + 98 negotiable instrument
Dinesh
(Querist) 06 September 2012
This query is : Resolved
does sec. 319 cr.p.c also applicable on complaint cases (on 138 negotiable instrument act cases).
can u guide me upon combine effect of 319 cr.p.c + 98 negotiable instrument act.
can we impled a new accused in case of 138 at the time of evidence without serve him legal notice ( which is not possible because of limitation)
ajay sethi
(Expert) 06 September 2012
in Krishnappa V. State of Karnataka wherein it has been held that it has to be kept in view that the power under Section 319 of the Code is discretionary and has to be exercised only to achieve criminal justice and that the Court should not turn against another whenever it comes across evidence connecting that other person also with the offence. The provisions of Section 319 of the Code are required to be used sparingly
in Raghuband Dubey vs.State of Bihar : 1967 (2) SCR 423 by holding thus:
"In our opinion, once cognizance has been taken by the Magistrate, he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons areinvolved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence
ajay sethi
(Expert) 06 September 2012
319. Power to proceed against other persons appearing to be guilty of offence. (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which Such person could be tried together with the accused, the court may proceed against such person for the offence which he appears to have committed
if the court is of the view tht accused has committed an offence the court may in its discretion add them as accused .
ajay sethi
(Expert) 06 September 2012
Bombay High Court
Vilas Yeshwant Mitkar vs The State Of Maharashtra on 12 October, 2010
Bench: A.P. Bhangale
PPD
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IN THE HIGH COURT OF JUDICATURE AT MUMBAI
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.3218 OF 2009
Vilas Yeshwant Mitkar. ..Applicant. Vs.
The State of Maharashtra
and 3 Ors. ..Respondents. ....
Mr.Prakash D. Dave, Advocate for the Applicant. Mrs.A.S. Pai, A.P . for the State.
.P
....
CORAM : A. P. BHANGALE, J.
DATED : 12TH OCTOBER, 2010
ORAL ORDER :
1. Heard.
2. The learned Advocate for the applicant states that affidavit of service has been filed and notices of this application have been served on all the respondents concerned by registered post as well as under postal certificate but none appeared for respondent Nos.2 to 4. 2
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3. The applicant by this application under Section 482 of Cr.P.C. questions the order dated 16.7.2008 which was passed below application (Exhibit-70) passed by the learned Metropolitan Magistrate, 13th Court, Dadar as also the order dated 20.3.2009 passed by the learned Ad-hoc Additional Sessions Judge, C.R. No.1, Sewree, Mumbai in Criminal Revision Application No.405 of 2008.
4. It appears that while Case No.407/SS/2004 arising from complaint made under Section 138 of the Negotiable Instruments Act was part-heard, in the course of cross-examination of the defence witness the complainant had succeeded to bring on record an admission that the Managing Director at the relevant time was respondent No.4 Shri Dilip Nevatiya for M/s. Sandeep Polymers Pvt. Ltd., the company from whom the complainant is seeking to recover outstandings of his retirement benefits which were granted in the form of three cheques which were dishonoured. After the evidence was brought on record that respondent No.4 was the Managing Director of the said company at relevant time, an application was moved by the complainant before the learned trial Magistrate to indict respondent No.4 also, as admittedly he was the Managing Director at relevant time when cheques were issued. Learned trial Magistrate on the ground that there was an order passed by this Court to discharge respondent No.4, held that, it would not be proper 3
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to issue summons against him under Section 319 of Cr.P.C. and for this reason the application was rejected.
5. The complainant then moved in Criminal Revision Application No.405 of 2008 which was also rejected on the identical ground that this Court had discharged the proposed accused earlier and, therefore, he cannot be indicted as an accused again. The learned Ad-hoc Additional Sessions Judge expressed view that the learned trial Magistrate has rightly rejected the application under Section 319 of Cr.P.C..
6. It does appear that earlier this Court by order dated 20.12.2006 in Criminal Application No.1274 of 2006 considering the averments made in the complaint and requirements of Section 141 of the Negotiable Instruments Act, decided to quash the process as against respondent No.4 herein. The order for issuance of process dated 11.4.2000 passed by the learned trial Magistrate, therefore, was quashed, as there were no necessary averments in the complaint.
7. Learned Advocate for the applicant submitted that although process was quashed earlier by this Court, the learned trial Magistrate ought to have considered the evidence which is brought on record in the form of admissions in the cross-examination of the defence witness in clear terms that respondent No.4 was the Managing 4
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Director and was looking after the day to day affairs of the company at the relevant time when cheques were issued. That being so, notwithstanding the earlier order passed by this Court to quash the process issued earlier for want of necessary averments in the complaint in this regard, the necessary evidence has been brought on record to that effect and, therefore, in view of Section 319 of Cr.P.C. the learned trial Magistrate ought to have issued notice under Section 319 of Cr.P.C. to the proposed accused as Section 319 Cr.P.C. would operate in the course of trial of an offence as soon as there is 'evidence' within the meaning of Section 319 of Cr.P.C. Section 3 of the Evidence Act defines 'evidence' to means and includes :-- (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters to fact under inquiry; such statements are called oral evidence; (2) all documents including electronic records produced for the inspection of the Court; such documents are called documentary evidence.
8. Learned Advocate made reference to ruling in Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Ors. AIR 1983 SUPREME COURT 67 in order to submit that the power under Section 482 of Cr.P can be exercised and the learned trial .C.
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Magistrate can be directed to issue notice to the proposed accused in view of evidence brought on record in the course of cross-examination of defence witness in the pending Criminal Case. It is contended that the power under Section 319 of Cr.P.C. is available to all the Courts and learned trial Magistrate ought to have considered that there was sufficient evidence indicating involvement of respondent No.4 in the offence which is punishable under Section 138 of the Negotiable Instruments Act, particularly, in view of Section 141 of the Negotiable Instruments Act. The Manager or the Managing Director who was at the relevant time, when cheques were issued, was incharge of the company or was responsible to the company for conduct of the company, is also deemed to be guilty for the offence and is liable to be proceeded against and punished accordingly. It is also submitted that merely because earlier process against the respondent No.4 was quashed by this Court would not be a ground for him to escape from prosecution once 'evidence' has been brought against him before the trial Magistrate.
9. The learned Advocate for the applicant also referred to the ruling in Dr.S.S. Khanna Vs. Chief Secretary, Patna & another, AIR 1983 SUPREME COURT 595 in order to submit that at later stage of the trial summons can be issued against the person who may be involved in the offence though not indicted earlier as an accused. 6
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10. Section 319 of Cr.P.C. allow the trial Court to proceed against any person although not indicted as an accused earlier, if it appears that such a person, who is proposed to be indicted by the complainant, appears to have committed an offence and could be tried together along with other accused already indicted. If such proposed accused is not attending the Court, he may be summoned before the Court for the purpose of enquiry into accusations made against him or for trial, as the trial Court may deem fit, so as to proceed against him.
11. I think the learned trial Magistrate pursuant to application made under Section 319 of Cr.P.C. on the basis of the evidence led before the Court, could have issued at least show-cause notice against the proposed accused calling upon him to show-cause as to why he should not be indicted in the pending trial as an accused when 'evidence' has been brought on record according to the complainant to make the proposed accused also answerable to the accusations made by the complainant in the course of evidence, led in the trial. Word "evidence" occurring in sub-section is used in comprehensive and broad sense which would also include the material collected by the investigating officer and the material or evidence which comes before the Court and from which the Court can prima facie conclude that person not arraigned before it is involved in the commission of 7
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crime. It is not necessary for the Court to wait until the entire evidence is collected for exercising the said powers.
12. The proceedings under Section 138 of the Negotiable Instruments Act are prima facie against the accused who is signatory to the cheque which is dishonoured and in respect of which demand notice has been issued but the amount of cheque remained unpaid. However, in case of company, the liability by way of statutory fiction makes any person who was at the time of offence, incharge of and/or was responsible to the company for the conduct of the business of the company as well as the company, since the company is answerable for dishonour of cheque when it was issued on account maintained by the company for payment of the cheque amount to the payee in respect of cheque which was dishonoured. Since there are statutory presumptions which are required to be rebutted, the burden of proof does shift from complainant to the accused and vice versa. Considering the legal position, therefore, I think that the learned trial Magistrate ought to have considered the relevant provisions of the Negotiable Instruments Act as well as Section 319 of Cr.P.C. as sought to be invoked against the proposed accused on the basis of evidence led in the trial and ought to have issued show-cause notice against the proposed accused calling upon him to show cause as to why he shall not be indicted as an accused and then to pass an appropriate 8
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order.
13. For these reasons, therefore, the impugned orders are quashed and set aside. The learned trial Magistrate shall consider the application preferred under Section 319 of Cr.P.C. read with relevant provisions of the Negotiable Instruments Act as also with reference to evidence led before the trial Magistrate and in accordance with law. Application is allowed accordingly.
(A. P. BHANGALE, J.)
