1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.951 OF 2010 Mumbai Mazdoor Sabha and another. ..... Petitioners. Vs. State of Maharashtra and another ..... Respondents. --- Mr. A.H. Ponda i/b M/s. Bachubhai Munim & Co. for Petitioners. Mrs. P.P. Bhosale, APP for the State. Mrs. Manisha Mehta for Respondent No.2. ---- WITH CRIMINAL WRIT PETITION NO.1070 OF 2010 Chandbibi Zaidi .... Petitioner. Vs. State of Maharashtra and another ..... Respondents. --- Mr. A.H.H. Ponda i/b M/s. Bachubhai Munim & Co. for Petitioners. Mrs. R.V. Newton, APP for the State. Mrs. Manisha Mehta for Respondent No.2. ---- 2 CORAM: V. M. KANADE, J. DATE : 6th April 2010 P.C.:- 1. Petitioners in both these Writ Petitions are challenging the order of issuance of process by the Additional Chief Metropolitan Magistrate, 40th Court Girgaum in a complaint filed by Respondent No.2 in the said Court under sections 403, 404, 406, 408, 409, 424, 467, 468 and 477A read with section 34 of the Indian Penal Code. 2. Brief facts are as under:- 3. Respondent No.2’s father Shri R.J. Mehta was the President of Mumbai Mazdoor Sabha who is the Petitioner No.1 in Writ Petition No.951 of 2010 and, after his demise in 2003, Chandbibi, the Petitioner in Writ Petition No.1070/2010 was appointed unanimously as the Chairman and the Petitioner No.2 in Writ Petition No.951 of 2010 was appointed as General Secretary of the Mumbai Mazdoor Sabha. Respondent No.2, initially, made complaint to the concerned Police Station and when the said complaint was not registered, asked the Superior Officers to take suitable action and since no suitable action was taken by the Superior Officers, a private complaint was filed in the Court of Metropolitan Magistrate. Initially, an application was filed for investigation under section 156(3) of the Criminal 3 Procedure Code. That application, however, was rejected and, thereafter, the learned Magistrate, after the matter was heard by him, directed the Police to investigate into the said complaint under section 202 of the Criminal Procedure Code. The police submitted a report that accused had committed an offence under sections 406, 465, 467, 468 read with section 34 of the Indian Penal Code. The learned Magistrate, after going through the material on record, issued process for the offence punishable under sections 406 read with section 34 and also under section 465, 467, 468 read with section 34 of the Indian Penal Code. 4. Mr. Ponda, the learned Counsel appearing on behalf of the Petitioners strenuously urged that the learned Magistrate had erred in issuing process against the Petitioners. He firstly submitted that the Petitioner No.1 – Mumbai Mazdoor Sabha in Writ Petition No.951 of 2010 is a juristic person since it is a Trade Union registered under the provisions of the Trade Unions Act, 1926 and, being a juristic person, it cannot have necessary mens rea and, therefore, the complaint against accused No.1 is not tenable so far as offences punishable under sections 406, 420, 465, 467 and 468 of the Indian Penal Code are concerned. In support of the said submission, he relied upon the judgment of the learned Single Judge of this Court in Natural Sugar and Allied Industries Ltd. v Razzak s/o Hazi Gaffar and others1 He also relied upon the judgment of the learned Single Judge in Motorola Incorporated a company incorporated and existing 1 2006(4) Mh.L.J.771 4 under the laws of the State of Delaware v. Union of India (UOI), State of Maharashtra and Iridium India Telecom Ltd.1 He then invited my attention to the complaint and more particularly the averment made in para 6 of the complaint. He submitted that the complainant had made a false statement in the said paragraph. He submitted that the complainant had falsely stated that accused No.1 had assured him and his family of the return of the said deposit made by R.J. Mehta. He invited my attention to the letter dated 28/07/2003 on which reliance was placed by the complainant in support of the said submission. He submitted that in the said letter it is nowhere stated that the accused Nos. 2 and 3 had assured him of returning the aforesaid deposit. He submitted that, on the contrary, in the said letter it is clearly mentioned that mother of Respondent No.2 and wife of late R.J. Mehta would be paid interest on the said deposit but the entire amount would not be paid. He submitted that thus, there is suppression of material fact by the complainant and, on that ground, the complaint is liable to be dismissed. He then submitted that averments in the said complaint clearly disclose that no offence has been committed by the Petitioners herein and that the dispute essentially is of a civil nature. He submitted that the learned Magistrate has erred in issuing process against the Petitioners herein. He then submitted that there was inordinate delay in filing the complaint and that though R.J. Mehta had expired in 2003, the present complaint is filed almost after six years after his demise. It is further 1 2004 Cri.LJ 1576 5 submitted that the allegation of forgery on the basis of vouchers which were produced by the accused was wholly unwarranted. It is further submitted that the learned Magistrate has erred in issuing the process on the ground of forgery of vouchers since the Police Report did not allege that there was a forgery committed by the Petitioners herein and the learned Magistrate had, on his own, drawn that inference. He then invited my attention to the original vouchers and submitted that these vouchers were sent by R.J.Mehta and alterations were made by him. He then submitted that the complainant’s mother is not entitled to receive the amount demanded by her since various amounts were paid by Union from time to time and which amount was deducted from the deposits which were given by late R.J. Mehta. 5. On the other hand, the learned Counsel appearing on behalf of Respondent No.2 submitted that the ratio of the judgment on which the reliance is placed by the Petitioners would not apply to the facts of the present case. She submitted that the Apex Court has clearly held that only after evidence is led, the said aspect shall be considered by the learned Magistrate. She further submitted that the Chairman and the Secretary were also made accused in the said complaint and the allegation of criminal breach of trust and forgery was made against them and, therefore, the said complaint, even otherwise, was maintainable. She submitted that it is a settled position in law that this Court should not 6 normally interfere with the order of issuance of process and only in rare cases inherent powers of the court should be exercised for quashing the complaint. She relied upon the judgment of the Apex Court reported in State of Maharashtra v. Sayed Mohammed Masood1. He also relied upon the judgment of Madhya Pradesh High Court in Akshat Pradhan & Ors v. Shailendra Pradhan & Ors2 . She further relied upon the judgment of the Apex Court in M/s. Medchl Chemicals and Pharma Pvt. Ltd. v. M/s Biological E. Ltd. and others3 and also on the judgment of the Apex Court in Rajesh Bajaj v. State NCT of Delhi and others4. 6 I have heard both the learned Counsel appearing on behalf of Petitioners and Respondents at length. In the present case, father of Respondent No.2 was a founder member of Mumbai Mazdoor Sabha and he was also its President for almost 50 to 55 years. After his demise in 2003, Chandbibi Zaidi became Chairman and Dhunji Neterwalla became General Secretary. Immediately after demise of R.J. Mehta, his wife informed the Union to give accounts and hand over monies which were payable to her as legal heir of late R.J. Mehta. It is pertinent to note that on 28/7/2003, a letter was written to wife of late R.J. Mehta informing her that money which was deposited by R.J. Mehta with Sabha would be kept with Sabha and only interest would be paid to her during her life time and, thereafter, 1 2010 CRI.L.J.461 2 2010 CRI.L.J. (NOC) 159 (M.P.) 3 AIR 2000 SC 1869 4 AIR 1999 Supreme Court 1216 7 money was to be treated as donation to the Trust. However, if any major medical expenses were to be incurred, the money which was deposited with Sabha could be spent on such treatment. It was stated in the letter that the inquiries which were made by her were put before the General Council’s Meeting held on 22/7/2003 and it was accordingly unanimously agreed by the General Council that the accused were authorized to deal with the matter as they deem fit and proper. Accordingly, the updated accounts were sought to be deducted viz. loan allegedly given by Engg, Mazdoor Sabha and various sums which were allegedly paid by the Union. Thereafter in letter dated 5/12/2003 written by the accused to the mother of Respondent No.2, she was asked to produce succession certificate from the High Court and it was stated therein that interest had been paid to her on the said deposit. Thereafter, wife of late R.J. Mehta obtained succession certificate from the High Court and the accused were asked to hand over the dues as per the succession certificate granted by the High Court. However, this letter was sent on 9/9/2006. Surprisingly, it appears that on 28/9/2006, Solicitors of the accused informed the wife of late R.J. Mehta that certain deductions were made and as a result the amount of Rs 7,41, 883 was due from the Estate of late R.J. Mehta to the Mumbai Mazdoor Sabha. 7. According to Respondent No.2, therefore, the entrustment of the funds has been admitted by the 8 Petitioners in the initial correspondence. Thereafter wife of late R.J. Mehta was asked to produce the succession certificate. After the succession certificate was produced, it was alleged that certain amounts have to be deducted from the said amount and, in fact, the complainant’s mother was liable to pay to the Petitioners a sum of Rs 7 lacs approximately. Later on, various vouchers were produced which are not signed by late R.J. Mehta and in which there are various alterations made and which was found during the course of investigation by the police. The averments made in the complaint, therefore, clearly discloses, prima facie, commission of the offence by the Petitioners herein. During investigation, various vouchers were produced by the police and the learned Magistrate has, therefore, issued process against the accused for the offence punishable under sections 406, 465, 467, 468 read with section 34 of the Indian Penal Code. The Police report which is filed by the Investigating Officer also reveals that an opportunity was given to the accused to produce documents in support of their case. However, the report indicates that no explanation could be given and the relevant documents could not be produced by the accused in support of their case. The learned Magistrate, after taking into consideration the police report and the complaint and various documents which were seized by the police during investigation, has issued process. In my view, therefore, it cannot be said that there is non-application of mind on the part of the learned Magistrate in issuing the process against the accused. 9 8. Mr. Ponda, the learned Counsel appearing on behalf of the Petitioners has strenuously urged that the complaint which was filed against the Petitioners is liable to be quashed on the ground that accused No.1, being a juristic person, could not have been necessary mens rea and since the offence punishable under sections 406, 465, 467, 468 requires mens rea, the complaint against the accused is not maintainable. He relied upon the judgment of the Apex Court in Kalpnath Rai v. State (Through CBI)1. He also relied upon the judgment of the learned Single Judge of this Court in the case of Motorola Incorporated a company incorporated and existing under the laws of the State of Delaware v. Union of India (UOI), State of Maharashtra and Iridium India Telecom Ltd.2 and the judgment of the learned Single Judge of this Court in the case of Natural Sugar and Allied Indsutries Ltd. v. Razzak s/o Hazi Gaffar and others3. 9. On the other hand, the learned Counsel appearing on behalf of Respondent No.2 relied upon the judgment of the Madras High Court in Raymond Menezes v. Sengunthar Kaikolkar Mahajana Sangam4 10. There cannot be any dispute regarding the ratio of the judgments on which reliance is placed by the learned Counsel for the Petitioners. In the present case, however, 1 (1997) 8 SCC 732 2 2004 Cri.LJ 1576 3 2006(4) Mh.L.J.771 4 2009 CRI.L.J.4196 10 apart from accused No.1, who is a juristic person, there are two other accused viz accused Nos. 2 and 3 against whom specific allegations have been made in the complaint. Even, so far as accused No.1 is concerned, the question whether accused No.1 would also be liable for the said offence could only be determined after the evidence is adduced by the prosecution. The Trial Judge will have to decide after the trial is over as to whether the offence requires establishment of mens rea. Section 2 of the Indian Penal Code states that every person shall be liable to punishment under this Code and not otherwise for every act or omission contrary to the provisions thereof. The word “person” has been defined in Indian Penal Code under section 11 and it includes any Company or Association or body of persons, whether incorporated or not. The word “person” also has been similarly defined under the General Clauses Act. The definition of the word “person”, therefore, is in pari materia with the definition of the said expression in the General Clauses Act also. A conjoint reading of the aforesaid provisions would indicate that a person whether natural or juridical is liable to be punished if he/it is found to be guilty. The Apex Court in Standard Chartered Bank and others etc. v. Directorate of Enforcement and others etc.1 has observed in para 55 of its judgment as under:- “55. The Counsel for the appellant contended that the penal provision in the statute is to be strictly construed. 1 2005 AIR SCW 2829 11 Reference was made to Tolaram Relumal and another v. The State of Bombay, 1955 (1) SCR 158 at 164 and Girdhari Lal Gupta v. D.H. Mehta and another, 1971(3) SCC 189. It is true that all penal statutes are to be strictly construed in the sense that the Court must see that the thing charged as an offence is within the plain meaning of the words used and must not strain the words on any notion that there has been a slip that the thing is so clearly within the mischief that it must have been intended to be included and would have included if thought of. All penal provisions like all other statutes are to be fairly construed according to the legislative intent as expressed in the enactment. Here, the legislative intent to prosecute corporate bodies for the offence committed by them is clear and explicit and the statute never intended to exonerate them from being prosecuted. It is sheer violence to commonsense that the legislature intended to punish the corporate bodies for minor and silly offences and extended immunity of prosecution to major and grave economic crimes.” 12 So far as awarding custodial sentence to artificial or juristic person is concerned the Apex Court in the said case in para 61 has observed as under:- “61. The contention of the appellant is that when an offence is punishable with imprisonment and fine, the court is not left with any discretion to impose any one of them and consequently the company being juristic person cannot be prosecuted for the offence for which custodial sentence is the mandatory punishment. If the custodial sentence is the only punishment prescribed for the offence, this plea is acceptable, but when the custodial sentence and fine are the prescribed mode of punishment, the court can impose the sentence of fine on a company which is found guilty as the sentence of imprisonment is impossible to be carried out. It is an acceptable legal maxim that law does not compel a man to do that which cannot possibly be performed [impotentia 13 excusat legem]. This principle can be found in Bennion’s Statutory Interpretation 4th Edn. At.page 969. “All civilized systems of law import the principle that lex non cogit ad impossibilia....” As Patternson,J. said “the law compels no impossibility”. Bennion discussing about legal impossibility at page 970 states that, “If an enactment requires what is legally impossible it will be presumed that Parliament intended it to be modified so as to remove the impossibility element.” This Court applied the doctrine of impossibility of performance [Lex non cogit ad Impossibilia] in numerous cases [State of Rajasthan v. Shamsher Singh, 1985 (Supp) SCC 416; Special Reference No.1 of 2002 reported in 2002(8) SCC 237].” 11. The Trial Court, therefore, will have to decide after the trial is over whether the offence requires establishment of mens rea and whether such mens rea was established to prove the said offence. Therefore, in my view, these aspects cannot be gone into by the High Court while exercising its jurisdiction under Article 227 of the Constitution of India or 14 under section 482 of the Criminal Procedure code or while considering the application for discharge filed by the accused. 12. So far as the judgments in Motorola Incorporated a company incorporated and existing under the laws of the State of Delaware (supra) and in Natural Sugar and Allied Industries Ltd. (supra) are concerned, the said judgments have been given on the facts of the said case. In the case of Natural Sugar and Allied Industries Ltd. (supra), the learned Single Judge was pleased to quash the process against the Company and not against two other accused. So far as judgment in Motorola Incorporated a company incorporated and existing under the laws of the State of Delaware (supra) is concerned, the other learned Single Judge was pleased to quash the process against all the accused. However, the said order, in my view, was passed in the facts of the said case. Apart from that, it has to be borne in mind that the High Court, while exercising its powers under section 482 of the Code has no authority or jurisdiction to examine the correctness or otherwise of the averments which are made in the complaint and the said averments will have to be considered at this face value without any critical examination of the same. The Apex Court and this Court have held in catena of cases that the power under Article 227 of the Constitution of India read with section 482 of the Criminal Procedure Code should be exercised very sparingly and if the allegations made in the FIR disclose commission of 15 the offence, the Court should not go beyond the same and pass an order in favour of the accused to hold the absence of any mens rea. Secondly, even if the allegation discloses civil dispute that by itself will not be a ground to hold that the criminal proceedings should be quashed and set aside. The Apex Court right from the judgment in R.P. Kapur v. State of Punjab1 has held that only in cases where (a) averments made in the complaint even if they are taken on its face value do not disclose commission of offence, (b) there is no legal evidence to show the commission of offence and (c) there is statutory bar for taking cognizance of the offence, the High Court should exercise its inherent power under section 482 of Cr.P.C or under Article 227 of the Constitution of India. The subsequent judgments of the Apex Court have reiterated the said principle and some other grounds have been added. However, more or less, it is well settled that High Court should be slow in quashing the process while exercising the said power and the same has to be exercised with care and circumspection. 13. It is also strenuously urged by the learned Counsel appearing on behalf of the Petitioners that the dispute clearly discloses that it is a civil dispute for recovery of the amount which is allegedly due and payable by the Petitioners to the complainant. It would be relevant to refer to the observations made by the Apex Court in Trisuns Chemical Industry v. Rajesh Agarwal2 in para 6 of its 1 AIR 1960 SC 866 2 1999 AIR SCW 3492 16 judgment. “6.......In the last referred case this Court also pointed out that merely because an act has a civil profile is not sufficient to denude it of its criminal outfit. We quote the following observations (para 10 of AIR, Cri.LJ): “It may be that the facts narrated in the present complaint would as well reveal a commercial transaction or money transaction. But that is hardly a reason for holding that the offence of cheating would elude from such a transaction. In fact, many a cheatings were committed in the course of commercial and also money transactions.” It would also be relevant to refer to the observations made by the Supreme Court in M/s Medchl Chemicals and Pharma Pvt. Ltd. v. M/s. Biological E. Ltd and others1 in para 17 of its judgment. “17. On careful reading of the complaint, in our view, it cannot be said that the complaint does not 1 AIR 2000 SC 1869 17 disclose the commission of an offence. The ingredients of the offences under Sections 415, 418 and 420 cannot be said to be totally absent on the basis of the allegations in the complaint. We, however, hasten to add that whether or not the allegations in the complaint are otherwise correct has to be decided on the basis of the evidence to be led at the trial in the complaint case but simply because of the fact that there is a remedy provided for breach of contract, that does not by itself clothe the Court to come to a conclusion that civil remedy is the only remedy available to the appellant herein. Both criminal law and civil law remedy cab be pursued in diverse situations. As a matter of fact “they are not mutually exclusive but clearly co-extensive and essentially differ in their content and consequence. The object of criminal law is to punish an offender who commits an offence against a person, property or the State for which the accused, on proof of the offence, is deprived of his 18 liberty and in some cases even his life. This does not, however, affect civil remedies at all for suing the wrongdoer in cases like arson, accidents etc. It is anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred. The two types of actions are quite different in content, scope and impart” (vide Pratibha Rani v. Suraj Kumar (AIR 1985 SC 628 : 1985 Cri LJ 817) (supra).” The contention of the learned Counsel for the Petitioners, therefore, that the dispute is of civil nature and therefore process should be quashed cannot be accepted. 14. It is further strenuously urged by the learned Counsel appearing on behalf of the Petitioners that the vouchers which were produced by the accused are in the handwriting of late R.J. Mehta and all the cancellations and alterations were made by him and that the said vouchers have been signed by him. He also submitted that the learned Magistrate erred in issuing process under sections 406, 465, 467, 468 read with section 34 when the police does not refer to any such allegation. I am afraid, that the said submission also cannot be accepted. As I have already mentioned hereinabove that, at this stage, it is not possible to go into 19 the correctness or otherwise