IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No 1362 of 2002 For Approval and Signature: Hon'ble MR.JUSTICE D.P.BUCH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO @ PUNJAB TYRE HOUSE Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Misc.Application No. 1362 of 2002 MR BR GUPTA for Petitioner No. 1-3 Mr V M Pancholi, APP for Respondent No. 1 MR PC KAVINA for Respondent No. 2 -------------------------------------------------------------- CORAM : MR.JUSTICE D.P.BUCH Date of decision: 19/04/2002 ORAL JUDGEMENT This is an application filed under section 482 of the Code of Criminal Procedure, 1973 for quashing criminal case No.96/2002 filed by respondent no.2, herein, against the petitioners for offences punishable under section 138 of the Negotiable Instrument Act, 1881 as well as for the offences punishable under section 420, and 406 of IPC before the learned Metropolitan Magistrate, Court No.15, Ahmedabad City. The facts of the case of the said criminal case No.96/2002 may be briefly stated as follows: 2. That, petitioner No.1 is a registered partnership firm and petitioners no.2 and 3 are the partners thereof. It is alleged in the complaint before the trial court that petitioners no.2 and 3 herein together and with the help of each other are running business in the name and style of petitioner no.1. It is also alleged in the complaint that petitioners no.2 and 3 are carrying on business of sale of tyres and allied products from their business premises as mentioned in the complaint. It is further alleged in the complaint that petitioners no.2 and 3 approached the Ahmedabad branch office of respondent no.2 sometime in July, 1999 and presented themselves as sellers of products such as those of the complainant and asked that the complainant should sell its products through their business. Ultimately, a contract was entered into and sale was made. It is further alleged in the complaint that despite the delivery of goods, payment was not made regularly. It is alleged that at the first instance, payment was made but thereafter payments were not made but cheques were issued by petitioner No.1 and signed by the second petitioner. However, the cheques were dishonoured when presented to the bank concerned. Therefore, there is allegation that the petitioners herein have committed an offence punishable under section 138 of the Negotiable Instruments Act, 1881 (for short, 'the Act') It is further alleged that the present petitioners have adopted a modus operandi designed and crafted to cheat the complainant and the entire chain of events shows that the accused did not have either resources or intention to make the payment to the complainant, even though under the terms and conditions, issuance of cheques against delivery of goods was agreed to by the accused. It is further alleged in the complaint that it was the intention of the accused to cheat the complainant and induce the complainant to part with the valuable goods. It is, therefore, contended that by such inducement, the contesting respondents have delivered the goods and thereafter, the cheques issued were not honoured and, therefore, payments could not be realised and, therefore, according to the case of the original complainant, the complainant was cheated by the aforesaid action on the part of the petitioners. Therefore, offence punishable under section 420 of IPC has also been alleged against the petitioners. 2. On receipt of the aforesaid complaint, the learned Magistrate recorded verification of the complainant on oath and thereafter, he directed that the complaint be registered and process be issued for offences punishable under section 138 of the Act and for the offence punishable under section 420 read with section 114 of IPC. Feeling aggrieved by the said order of the learned Magistrate, the applicants herein have preferred this application before this Court. It has been mainly contended here that since several cheques said to have been issued by the petitioners, the trial court could not have issued process for more than three offences as indicated in section 219 of the said Code. It is further contended that the cheques were invalid as they were presented after the due date. It is also contended that there was some overwriting with respect to the dates for the issue of cheques and, therefore, such cheques could not have been considered by the trial court for any purpose. It is further contended that petitioners no.2 and 3 were not responsible and liable to answer the complaint as there was no allegation in the complaint that they were responsible and liable for the alleged offence even on the date of which the offence was allegedly committed. It is further contended that the amount stated in the cheques were not due on the date of the cheques and, therefore, no offence can be said to have been made out against the petitioners. It is, therefore, contended that the learned Magistrate has committed grave error in issuing process after registering the complaint against the petitioners. That therefore, since no offence has been made out, the present application may be allowed and the aforesaid criminal case filed against the petitioners be quashed and se aside. 3. On receipt of the aforesaid application, notice was issued and in response to the service of notice, learned APP, Mr V M Pancholi appears for the State of Gujarat-respondent no.1 and Mr P C Kavina, learned Advocate appears for respondent no.2. I have heard the learned Advocates for the parties and have perused the papers. In fact, learned Advocates for the parties have taken me through the complaint as well as the memo of the application submitted by the applicant herein. It is first contended by the learned Advocate for the applicants that under section 219 of the Code, the trial court could have dealt with only three offences if committed within a span of one year and if the offences are more than three, then in that event, for the remaining offences, the court could not take cognizance of such offences. For this purpose, he has taken me through the provisions made in section 219 of the Code which reads as under: "Three offences of same kind within year may be charged together - (1) when a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, any number of them not exceeding three. (2) Offences are of the same kind when they are punishable with the same amount of punishment under the same section of the IPC or of any special or local law: Provided that, for the purposes of this section, an offence punishable under section 379 of the IPC shall be deemed to be an offence of the same kind as an offence punishable under section 380 of the Code, and that an offence punishable under any section of the said code, or of any special or local law, shall be deemed to be an offence of the same kind as an attempt to commit such offence, when such an attempt is an offence." While dealing with the provisions of section 219 of the Code, it would also be relevant to consider the provisions made in section 218 of the said Code, wherein it has been mentioned that when the accused person, by application in writing, so desires and the Magistrate is of the opinion that such person is not likely to be prejudiced thereby, the Magistrate may try together all or any number of the charges framed against such person. This is not a stage at which section 218 of the Code can be brought into operation. However, the fact remains that it is not the intention of the legislature that more than one offence cannot be tried together or that more than three offences cannot be tried together. It is true that the provision of section 218 of the Code is subject to the consent of the accused person. It is also based on the fact that the Magistrate has to find that no prejudice is likely to be caused to the accused, if he is tried for many offence at a time. 4. So far section 219 is concerned, it is true that it has been mentioned in it that when a person is accused of more offences than one of the same kind committed within the span of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, any number of them not exceeding three. At the same time, it is also relevant to refer to provisions of section 220 of the Code wherein it has been stated that if one series of acts so connected together as to form the same transaction, and if more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence. It has been argued by the learned Advocate for the petitioners that different bills have been issued, different cheques have been issued. cheques have been issued on different dates and, therefore, it cannot be said that one offence has been committed. On the other hand, it has been argued on behalf of the contesting respondent, that, in fact, it is a series of one transaction and as and when the goods were required, they were supplied by the respondents. It is a matter of the same transaction and the dispute is between the same parties and therefore, it would not be open to this court to quash the complaint on the basis of the aforesaid contention raised by the petitioners. This requires consideration and hence the complaint cannot be quashed on this count. 5. It is also required to be considered that the requirement of section 219 of the Code for trying three offences in one case within a span of one year is restricted to the actual trial and not to the filing of complaint or FIR. Even if a FIR or a complaint has been filed consisting of more than three offences in one year, then also FIR can be registered. It can be investigated also. However, if it is found that there is some defect touching the provisions made in section 219, then the Investigating Officer can divide the cases in accordance with the provisions made in Section 219 of the Code. If he does not do it and submits one composite charge sheet for more than three offences, then the Court may, separate the trial to be in conformity with the provisions made in section 219 of the Code. In the alternative, even the Investigating Police Officer may also file supplementary charge sheet so as to be in conformity with section 219 of the Code. Therefore, the restrictions placed by section 219 of the Code may not be an obstruction at the stage of filing of FIR or a complaint. Therefore, even from this angle, the complaint filed by the contesting respondent cannot be thrown away on the ground of restriction of section 219 of the Code. 6. It is next contended by the learned Advocate for the petitioner, that the cheques were invalid inasmuch as the period of presentation had expired and, therefore, there were some overwriting on the cheques with respect to the date of issue of those cheques. Learned Advocate for the petitioner has drawn my attention to a cheque at page no.52 which shows that there is one date i.e. 7.12.2000 which has been struck off and rubber stamp showing the date of 29.11.2001 has been affixed. It is the argument of the learned Advocate for the petitioner that this type of over writing in the date of cheque shows that the dates are not genuine and the rubber stamp has been placed on those dates by the contesting respondent with a view to show that the presentation of the cheque was within limitation. On this aspect of the case, it would be necessary to refer to the averments made in the complaint. In para 4 of the complaint at page 16 it has been alleged by the contesting respondent that some of the cheques issued by the accused are bearing two dates. It is further mentioned therein that these dates were put on the cheques by the accused on the basis of concession granted by the complainant to the accused inasmuch as the accused had requested the complainant not to deposit the cheques within the validity period as per the earlier date. It is further stated in the said para that all these cheques, which were revalidated, bear new dates. Any way there is an allegation on the part of the petitioners that there was over writing in the cheques with respect to the dates of the cheque. On the other hand, the contesting respondent has submitted that this change was made by the petitioners while issuing the cheques. This shows that there is again a disputed question of fact which cannot be entered into in the proceeding under Section 482 of the Code. In the facts and circumstances of the case, Shri Ishar Alloy Steels Ltd. Vs. Jayswals Neco Ltd., reported in (2001) 3 SCC 609 will not help the petitioner. 7. It is then contended by the learned Advocate for the petitioners that there is no mention in the complaint that the petitioners herein were and are the persons responsible for the offences said to have been committed on the date on which the offences were committed. It is his argument that the date of issue of the cheque would not be the date of commission of offence. It is his argument that the date of commission of offence would be the date on which the cheques have been dishonoured, the date on which the notices were issued and the date on which the period of notice expired. It is also his argument that there is no mention in the complaint that the present petitioners were responsible for the business of the firm i.e. petitioner no.1 on the date on which the offence can be said to have been committed. Again on this point, the original complainant has stated in the complaint in para 1 that petitioners no.2 and 3 with the help of each other in the name and style of petitioner no.1. are running the partnership firm. When the word 'are' is indicated in para 1 of the complaint, it would mean that even on the date of the complaint, these two petitioners were allegedly running the business in the name of petitioner no.1. It is also alleged in para 1 of the complaint that petitioners and 2 and 3 are carrying on business of sale of tyres as mentioned above. In para 2 of the complaint, it is alleged that petitioners no.2 and 3 had approached the Ahmedabad branch of the complainant in July, 1999 and consequent upon the said approach the contract was effected between the parties. This shows that petitioners no.2 and 3 were actively participating in the business of petitioner no.1, the firm of which there are partners. It is found from the pleadings and arguments that petitioners no.2 and 3 are the only partners in petitioner no.1 firm. It is also a matter of record that petitioner no.2 has signed the cheque which shows that on the date of issue of the cheque he was partner of the firm and he was actively and effectively participating in the business of the said firm. 8. In para 4 of the complaint again it has been alleged that the new dates have been put on the cheques by the accused on the basis of concession granted by the complainant to the accused. This would mean that even when the new dates were placed, petitioners no.2 and 3 were effectively and actively participating in the business of petitioner no.1. This can be inferred from this allegation also. In para 4 again it has been alleged at page 17 that on petitioners no.2 and 3 assuring the complainant that all the cheques would be honoured, the complainant deposited the cheques with the bank and they were not honoured and, therefore, even when the cheques were placed and presented to the bank the assurance was given by petitioners no.2 and 3, according to the allegations made in the complaint which again indicates that petitioners no.2 and 3 both were actively and effectively participating in the business of petitioner no.1 as per the allegations of the respondent. There is no dispute that petitioners no.2 and 3 have yet not resigned from the firm and there is no allegation that these two petitioners were not dealing with the partnership business. These facts are required to be taken into consideration while dealing with the decision referred to by the learned Advocate for the petitioner on this aspect of the case. The first decision referred to by the learned advocate for the petitioner is in the case of Alka N Shah v. State of Gujarat, reported in 2000(3) GLH 468. There it has been observed by this court that it is obvious that the offence could only be committed on the presentation of the cheques on due dates, on the dishonour of the cheques, and the consequential notice being issued under section 138 of the said Act. There is no dispute with respect to the said observations made by this court as aforesaid. The facts of that case were quite different. That can be drawn from para 4 of the said decision wherein it has been observed that even according to the complainant, the offence was committed by the company and accused no.1 was liable on account of her position as M.D. of the company. On a plain reading of section 141 of the Act, it becomes obvious that every person "at the time the offence was committed, was in charge of and was responsible to the company" shall be deemed to be guilty of the offence. It is also observed that on the facts and circumstances of the case, it was an admitted position that the offence was committed when the cheques were dishonoured, and when a notice of dishonour was issued under section 138 of the Act. It is further observed that this occurred in November and December of 1999 whereas the accused in that case had resigned both as Director and Managing Director of the Company as early as on 27th January 1999. It was therefore, found that this former Managing Director of the company could not be said to have committed the offence on the date on which the offence could be said to have been committed. 9. With respect to the facts of the case on hand, it is clear that the second petitioner, who has signed the cheques, was partner of the first petitioner on the date, on which the cheques were issued, he was again the partner on the dates of which the cheques were dishonoured. He was also partner when the notices were issued and even on the date of the complaint, he has continued to be the partner of the said firm. In that view of the matter, there is no case of retirement from the partnership and, therefore, the aforesaid decision cannot be made applicable to the facts of the present case. 10. It has been contended that it has not been mentioned in so many words that petitioners no.2 and 3 were partners and responsible for business of the firm on the date on which the offence was committed. When it has been specifically alleged in the complaint that the petitioners were and are responsible for the said business, it would mean that they were responsible in the past and even on the date of the offence as well as on the date of the complaint they had continued to be responsible for the said purpose. Therefore, we cannot pick and choose a particular word in the complaint. It cannot be insisted that the complainant should use a particular word in the complaint for satisfying the requirement of sections 138 and 141 of the Act. Simply because it has not been mentioned that petitioners no.2 and 3 were responsible and liable on the date of the offence, then in that event, it cannot be said that the requirement of sections 138 and 141 of the Act have not been complied with. We have to go by the spirit of the complaint and not by any specific word thereof. 10.1. The second decision of this Court in the case of Gopishankar S Vaid v. State of Gujarat, reported in 2001(1) GLR 267 was also shown. There it was observed that when a company had nominated a person under section 17(2) to be the one responsible for the conduct of the business of the company, then the other directors or officers cannot be prosecuted unless it is alleged that the offence is committed with the consent or connivance of such other director or officer. This will again not be applicable to the facts of the present case since petitioner no.1 is a partnership firm itself and it is not explained as to why a person who has signed the cheque is not responsible for the offence in question. Even today respondents No.2 and 3 have not resigned as partners. Therefore the aforesaid decision again will not help the petitioners on the facts of the case before us. It is more so when petitioners no.2 and 3 both have allegedly participated in the business of the firm and in the negotiation for the contract in question. 10.2. Another contention raised by the learned Advocate for the petitioner is with respect to the notice issued by the contesting respondent to the petitioners. It has been argued at length that the contesting respondent has produced postal acknowledgements at page 51 to this application. It is his argument that this postal acknowledgement did not bear stamp of the post office. They do not show the date on which the notices were actually presented to the post office. They do not show the date on which the post office had delivered the post to the addressee and there is no mention as to the date on which the notices were served. It is not the contention of the petitioners that they did not receive the notice at all. On the contrary, the petitioners have stated in the petition that they have received the notices and they have sent reply to the said notices also. Therefore, the fact of receipt of notice cannot be disputed by the petitioners for the purpose of this application before this court. At the same time, it requires to be considered that the aforesaid copies of postal acknowledgements bear some signatures of the addressee and it will be open to the parties to produce evidence before the trial court to prove the said postal acknowledgements. If the dates are not there on the postal acknowledgement, it would be open to the parties to bring evidence from postal department to prove or disprove their rival case. However, it cannot be said here that the notices were not issued at all. With respect to the dates also, the contesting respondents have stated that probably the notices have been served on 22.12.2001. This will again be