1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 4119 OF 2009 Mr. Vilas Kompelli. ... Applicant. V/s. M/s. Jayshree Tea & Inds. Ltd. & Ors. ... Respondents. Mr. M.K. Kocharekar for the Applicant. Mr. S.V. Marwadi i/b. S.P. Narkar for Respondent 1. Ms. A.T. Jhaveri, APP for the State. CORAM : S.C. DHARMADHIKARI,J. DATED : 25th JANUARY 2010. P.C. :- Rule. Respondents waive service. By consent, Rule is made returnable forthwith. 2. The First Respondent – Complainant filed a complaint alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act. The complaint was filed in the Court of Metropolitan Magistrate, Esplanade, Mumbai bearing C.C.No.2302824/SS/2006. 3. A copy of the complaint is annexed at Annexure ‘A’ to this application. The complaint proceeds to allege that the complainant carries on business at the address mentioned in the complaint. The Original Accused is Mr. Ashok Kompelli. In paragraph 2 of the complaint it is stated that the Original Complainant/First Respondent before me had dealings with 2 the Original Accused. The Original Accused carries on business from 7th Kamathipura Building No.63, Mumbai – 400 008, certain goods were delivered, invoices raised and the accused in due discharge of this liability made payments by cheque. The cheques were dishonoured on presentation. A notice was issued to the Original Accused which is stated to be a sole proprietary concern. There being no compliance with this notice, the complaint was filed. 4. It appears that the Complainant stepped into the box. They were cross-examined and subsequently, another witness viz. an Officer from the Bank was summoned. During the course of his deposition, this witness stated that the sole proprietary concern M/s. Shree Sadguru Sales Agency is the proprietary concern of Vilas Kompelli. The Petitioner Vilas was stated to be the authorized signatory of the concern and as per account opening form, he was carrying on business from Shop No.1, Shopping Centre, Opposite Bengali House, Kamathipura, Mumbai – 400 008. The witness produced the account opening form. 5. When this witness was examined and thereafter, the Original Accused’s statement under Section 313 of Cr.P.C. was recorded, that the Complainant made an application under Section 319 of the Cr.P.C. That application was made on 7th November 2008. It is stated that the witness from the bank having deposed about the details of the sole proprietorship business and the name of the sole proprietor, Petitioner Vilas 3 Kompelli should be added as an Accused. After making reference to the complaint allegations and the deposition of the Bank witness, in paragraphs 14 and 15, the Complainant alleges thus :- “14. It is submitted that from the evidence appearing on the record it has been established that the proposed Accused is also concerned in the commission of offence punishable U/s. 138 of Negotiable Instruments Act in respect of the aforesaid cheque drawn and issued from a bank account maintained by M/s. Shree Sadguru Sales Agency with Canara Bank, Bombay Central Branch, Mumbai. It has been further established and proved that the proposed Accused has signed the aforesaid cheque in his capacity for as a proprietor of M/s. Shree Sadguru Sales Agency. Since, the Complainant had given demand notice in writing under regd. Post A.D. to the drawer of the said cheque i.e. M/s. Shree Sadguru Sales Agency at the correct business address of the said firm, the proposed Accused being the proprietor of M/s. Shree Sadguru Sales Agency and being the signatory of the dishonoured cheque was under a legal obligation to send the payment of Rs.56,160/- to the Complainant within the period of 15 days. It is submitted that by filing to send the aforesaid payment within stipulated period of 15 days, the 4 proposed Accused has incurred criminal liability for being prosecuted for an offence u/s. 138 of N.I. Act. 15. It is submitted that though M/s. Shree Sadguru Sales Agency is represented to be proprietary concern, the same however, in fact appears to be an association of person within the meaning of Sec.141 of Negotiable Instruments Act, whose business is jointly carried out by the said Ashok Kompelli and proposed Accused. The Accused and the proposed accused being brothers are closely involved with the day to day business of M/s. Shree Sadguru Sales Agency. The Accused and the proposed Accused have connived with each other in suppressing the actual proprietorship of M/s. Shree Sadguru Sales Agency and have connived further in creating a false impression in the mind of public at large as if the said Ashok Kompelli was/is the sole proprietor of M/s. Shree Sadguru Sales Agency.” 6. This application for adding the Petitioner as Accused was numbered as Exhibit 49. The learned Judge, after hearing the Complainant and the Original Accused allowed this application and added the Petitioner as Accused No.2 in the complaint. This order is passed on 18th February 2009. It is this order which is impugned in the present Petition. 7. Mr. Kocharekar, learned Advocate appearing in support 5 of this Petition contended that this may be termed as an interlocutory order but this Court has ample powers to interfere there with. More so, when it is demonstrated that the order is ex-facie illegal, erroneous and perverse. Mr. Kocharekar submits that Section 319 of Cr.P.C. is clear. That Section empowers the Court to add any person as an Accused but the pre-conditions thereof have to be satisfied. This power is exceptional and must be exercised rarely. It should not be exercised merely because an application is made. The Court must be satisfied that the person to be added is guilty of the offence alleged. Unless this satisfaction is recorded, the Court cannot proceed to add anybody as an Accused. 8. In the present case, according to Mr. Kocharekar, the sole proprietorship is carrying on business at a separate address. The Complainant never impleaded this Applicant as an Accused. They impleaded the Original Accused on the basis that he is the sole-proprietor of M/s. Shree Sadguru Sales Agency. They dealt with him. The notice was also issued to him. Thereafter, during the course of the evidence, if some other fact has come on record does not mean that the Petitioner can be added as an Accused. In the present case, the evidence indicates that the Petitioner is the sole-proprietor but that business is carried on from a distinct address. Now, acquitting the Original accused, the Trial will proceed only against the present Applicant. The Application has been allowed at a belated stage which has caused grave prejudice to the Applicant. More particularly, when the impugned order 6 is passed without hearing the Applicant. In these circumstances, the order deserves to be set aside. 9. Mr. Marwadi, learned Advocate, on the other hand, appearing for the Original Complainant supported the order. He submits that the sole-proprietorship is the one with whom the dealings were undertaken. The sole-proprietor has issued the address demanding payment. Merely because another person is the sole-proprietor does not mean that the complaint must be dismissed. This is just a technical plea raised by both Accused to escape punishment. The cheque is dishonoured. The cheque is signed by the present Applicant. The account is that of the present Applicant. In these circumstances, no advantage should be given to the Accused of any technical lapse or objection. Hence, in larger interest of justice, this Court should not interfere with the discretionary order of the Trial Court. The Petition be, therefore, dismissed. 10. The power under Section 319 of Cr.P.C., its ambit and scope has been a subject matter of number of decisions of the Supreme Court. In the latest decision reported in AIR 2009 SC 2792 Sarabjit Singh & Anr. V/s. State of Punjab & Anr, this is what the Supreme Court has held :- “12. The extent of the power of a Sessions Judge to summon persons other than the accused to stand trial in a pending case came up for consideration before this Court in Municipal Corporation of Delhi 7 V/s. Ram Kishan Rastogi [(1983) 1 SCC 1]. therein, this Court while holding that the provision confers a discretionary jurisdiction on the Court added “this is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken.” 17. The provision of Section 319 of the Code, on a plain reading, provides that such an extra- ordinary case has been made out must appear to the Court. Has the criterion laid down by this Court in Municipal Corporation of Delhi (supra) been satisfied is the question ? Indisputably, before an additional accused can be summoned for standing trial, the nature of the evidence should be such which would make out grounds for exercise of extraordinary power. The materials brought before the court must also be such which would satisfy the court that it is one of those cases where its jurisdiction should be exercised sparingly. We may notice that in Y. Saraba Reddy V/s. Puthur Rami Reddy and Anr. [JT. 2007 (6) SC 460], this Court opined : “.... Undisputedly, it is an extraordinary power 8 which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word “evidence” in Section 319 contemplates that evidence of witnesses given in Court.....” An order under Section 319 of the Code, therefore, should not be passed only because the first informant or one of the witnesses seeks to implicate other person(s). Sufficient and cogent reasons are required to be assigned by the court so as to satisfy the ingredients of the provisions. Mere ipse dixit would not serve the purpose. Such an evidence must be convincing one at least for the purpose of exercise of the extraordinary jurisdiction. For the aforementioned purpose, the courts are required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned. 18. The observation of this Court in Municipal Corporation of Delhi (supra) and other decisions following the same is that mere existence of a prima-facie case may not serve the purpose. Different standards are required to be applied at 9 different stages. Whereas the test of prima-facie case may be sufficient for taking cognizance of an offence at the stage of framing of charge, the court must be satisfied that there exists a strong suspicion. While framing charge in terms of Section 227 of the Code, the court must consider the entire materials on record to form an opinion that the evidence if unrebutted would lead to a judgment of conviction. Whether a higher standard be set up for the purpose of invoking the jurisdiction under Section 319 of the Code is the question. The answer to these questions should be rendered in the affirmative. Unless a higher standard for the purpose of forming an opinion to summon a person as an additional accused is laid down, the ingredients thereof, viz., (i) an extraordinary case, and (ii) a case for sparingly exercise of jurisdiction, would not be satisfied.” 11. If the present application is to be decided on the basis of these principles, then, to my mind, the learned Judge was in clear error in allowing the said application. He has not ascertained as to whether the dealings were with the present Applicant, whether he was the sole-proprietor, whether the account of the sole-proprietorship stated by the Bank employee is that of the Original Accused or the present Applicant, where the present Applicant carries on his business and what is the nature thereof. If the demand notice is issued 10 only to the sole-proprietorship concern and when the Complainant themselves throughout implead the Original Accused as a Sole Proprietor, then, merely because a different defence version has come on record, does not necessarily mean that any person should be added as an Accused. This is not a technical matter as suggested by Mr. Marwadi. This is a matter involving sombody’s liberty and life. On mere statements in the application without anything more, the learned Judge could not have directed adding of the Applicant as an Accused in this case. He has failed to satisfy himself from the reading of the application and from the entire evidence as to whether such a joinder or addition is necessary. 12. I have made reference to the application and the allegations in the complaint in detail only to high-light the fact that the Complainant had impleaded the original accused. It was its case that it dealt with the original accused alone. It gave an address of the sole-proprietorship concern and produced documents including demand notice address to the sole-proprietorship. Despite the cheque being signed allegedly by the present Applicant at no stage until the entire evidence was concluded, did the original Complainant made any application for his joinder. If once the matter reached such a stage, then, it was not open for the Complainant in this case to have made the subject application. That apart, the subject application itself does not make out a case for addition of the Applicant as an Accused. The entire application is nothing but reiteration of the complaint. In fact, in more 11 places than one, the original Accused’s name is mentioned by the Complainant. It is only in paragraph 9 of the Application that a reference is made to the Complainant’s evidence and that of witness of the Bank. On noticing that the original accused is likely to be acquitted that the present application was made by the Complainant. Surely, this is not what can be achieved in law by making an application for joinder of the accused. 13. The application, therefore, ought not to have been allowed. In these circumstances, the order under challenge being patently erroneous and illegal, deserves to be quashed and set aside. Rule is, therefore, made absolute in terms of prayer clause (a). The Application made for joinder of the present Applicant is dismissed. (S.C. DHARMADHIKARI,J.)