IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 422 OF 2007 1. Prafulla Maheshwari ) aged 63 years, son of Ramgopal ) Maheshwari, ex-director, ENBEE ) Infrastructure Ltd., R/o. E-3/22 ) Arera Colony, Bhopal (M.P.) ) 2. Brij Maheshwari ) aged 55 years, w/o. Prafulla ) Maheshwari, ex-director ENBEE ) Infrastructure Ltd., R/o. E-3/22 ) Arera Colony, Bhopal 462106. ) 3. Sandeep Maheshwari ) aged 42 years, s/o. Prafulla ) Maheshwari, Director ENBEE ) Infrastructure Ltd., 5, Zone II ) M.P. Nagar, Bhopal (M.P.). ) 4. Nimish Maheshwari ) aged 40 years, s/o. Prakash ) Maheshwari, Ex-director, ENBEE ) Infrastructure Ltd., C/o. E-3/22 Arera Colony ) Bhopal 462016, M.P. ) PETITIONERS Petnrs.Nos. 1-3 Orig.Accused No. 2-4, Petnr. No. 4 Orig. Accused No. 8 Versus 1. STATE OF MAHARASHTRA, through ) the Government Pleader and Public ) Prosecutor, Appellate Side, High Court, ) Bombay. ) - 2 - 2. Housing & Urban Development ) Corporation Limited a Company ) Incorporated under provisions of Companies ) Act 1956 and having its Registered office ) at Griha Nirman Bhavan, #325, 2nd floor, ) Bandra (East), MUMBAI 400051. ) ...Respondents (Respdt.No. 2 - Orig. Complainant) Mr. Swanand R. Ganoo I/b. Shri R. Ravindran, Advocate for the Petitioners, Mr. Tanvir Sheikh, Advocate for the Respondent No.2. Mr. J.P. Yagnik, APP for the Respondent No.1. CORAM: A.S. Oka, J. DATED: 1st AUGUST 2008 J U D G M E N T The submissions of the learned counsel appearing on behalf of the parties were heard on the last date. The petitioners have been arraigned as accused in a complaint filed by the second respondent under section 138 of the Negotiable Instrument Act, 1881 (hereinafter referred as ' the said Act of 1881'). - 3 - 2. The Petitioners in this petition have been arraigned as accused Nos. 2 to 4 and 8 in the said Complaint. The Learned Magistrate issued process on the said complaint. The Petitioners filed a criminal revision application before the Sessions Court for challenging the order of issuing process. The revision application has been dismissed by the Learned Sessions Judge and therefore, the Petitioner have approached to this Court by way of this petition under Article 227 of Constitution of India read with section 482 of Criminal Procedure Code, 1973 (hereinafter referred as 'the said Code of 1973' ). 3. The Learned counsel appearing for the Petitioners has invited my attention to the averments made in the complaint filed by the second respondent. He has placed reliance on the decision of the Apex Court in the case of the S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla and Anr. [2005(5) ALL MR (SC) 1118]. Inviting my attention to the law laid down by the Apex Court in Paragraph 19 of the said decision, he pointed out that the material averments required to be made for invoking section 141 of the said Act of 1881 do not find place in the complaint filed by the - 4 - second respondent. He pointed out that only on this ground the complaint deserves to be quashed as against the Petitioner. He submitted that in absence of the material averments, learned Magistrate could not have issued process on the complaint as against the Petitioners who were shown as the directors of the accused No.1 company. He also placed reliance on another decision of Apex Court in the case of the S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla and Anr. in criminal Appeal No. 664 of 2002 decided on 20.02.2007. 4. The Learned Counsel appearing for the complainant (second respondent) invited my attention to the decision of the learned Single Judge of this Court in the case of Prafulla Maheshwari & Ors. Vs. State of Maharashtra & Anr in Criminal Writ Petition No. 2110 of 2006. He submitted that the said decision of this Court has been rendered in a petition arising out of an identical complaint filed by the second respondent under section 138 of the said Act of 1981 against the Petitioners in this Petition. He pointed that the averments made in the - 5 - said complaint subject matter of the petition before the learned Single Judge of this Court were similar to the averments made in the complaint – subject matter of this Petition. He pointed out that after considering the first decision of the Apex Court in the case of S.M.S. Pharmaceuticals Ltd. (supra), this Court declined to exercise the powers under section 482 of the said Code of 1973. He pointed out that the decision of the Single Judge has been upheld by the Apex Court in a Special Leave Petition filed by the Petitioners in this petition as the Special Leave Petition has been dismissed by the Apex Court by order dated 15th January 2008. He submitted that the decision in a petition arising out of an identical complaint containing the same averments filed by the second respondent to which the present petitioners are parties is binding on this court. He submitted that by the said decision, similar averments made in the complaint were found to be in conformity with section 141 of the said Act of 1881. 5. The learned Counsel appearing for the Petitioners pointed that the said decision of this court is per incuriam and not binding for two reasons. First is that this Court has completely overlooked the binding - 6 - precedents of the Apex Court in both the cases of S.M.S. Pharmaceuticals Ltd. (supra). He has invited my attention to what has been held in paragraph 8 of the decision of the learned Single Judge. He submitted that the learned Single Judge of this Court relying upon the decision in the case of N. Rangachari Vs. Bharat Sanchar Nigam Ltd., (2007 All MR (Cri.) 1437 (S.C)) and Manjula Sinha Vs. State of U.P. and Ors. (2007 AIR SCW 4555) accepted the contention of the second respondent that the averments made in the complaint were sufficient to proceed with the complaint against the petitioners-directors. He submitted that the said decision is per incuriam and cannot be read as a binding precedent. He placed reliance on the decision of the Apex Court in the case of Central Board of Dawoodi Bohra Community and Anr. Vs. State of Maharashtra and Anr. (AIR 2005 SC 752). He submitted that the learned Single Judge has completely ignored the first judgment in the case of S.M.S. Pharmaceuticals Ltd. (supra) which is rendered by a bench of three Hon'ble Judges. He submitted that this is a fit case to refer to a Larger - 7 - Bench to re-consider the view taken by the learned Judge in the said case. 6. Lastly, the advocate for the petitioner pointed out that in the present petition he has prayed for quashing also on the ground that the petitioners had ceased to be the directors of the accused company. He states that as of today, the petitioners are not possessing the requisite documents to prove the said factual aspect and therefore, he is not pressing the challenge on the said ground and this ground may be kept open. 7. I carefully considered the submissions. A reliance has been placed on the averments made in the complaint and in particular in paragraph 2 of the said complaint. Paragraph 2 of the said complaint reads thus : “ 2. I say that the Accused No.1 is a limited Company incorporated under the Companies Act, 1956. Accused Nos. 2 to 5, 8 and 9 are the directors and accused Nos.6 and 7 are the Additional Directors of the accused No.1. The Accused Nos.2 to 9 are looking into day to day business of the company i.e. Accused No.1. - 8 - 8. The second respondent had filed another complaint under section 138 of the said Act 1881 against the petitioners and others in which process was issued. The petitioners challenged the order of issuing process by filing Criminal Writ Petition No.2110/2006 in this court. The relevant averments made in the said complaint subject matter of the criminal writ petition were nearly the same the averments made in the complaint subject matter of this petition. It will be necessary to refer to the decision of the Learned Judge in Criminal Writ Petition No.2110/2006 the case of Prafulla Maheshwari and Others. Paragraph 7 of the said decision of the learned Single Judge reads thus: “ 7. Even otherwise in the instant case, the complainant – company has averred in its complaint as under : ' I say that the Accused No.1 is a limited Company incorporated under the Companies Act, 1956. Accused Nos.2 to 5, 8 and 9 are the Directors and Accused Nos.6 and 7 are the Additional Directors of the Accused No.1. The Accused Nos.2 to 9 are looking into day to day business of the company I.e. Accused No.1.' The present petitioners are original accused Nos.2 to 4 and accused No.8 respectively in the complaint subject matter of the said petition. - 9 - After referring to the aforesaid averments, the learned Judge referred to the decision of the Apex Court in the case of N. Rangachari and Manjula Sinha (Supra). In paragraph 7, the learned Single Judge quoted relevant portion of the said decision. 9. The ground on which the learned Judge declined to exercise the powers under section 482 of the said Code 1973 can be seen from the paragraph 8 of the said judgment which reads thus: “ 8. Having regards to the law laid down by the Apex Court in the case of N. Rangachari (supra) and Manjula Sinha (supra), I am satisfied that the contentions of the Petitioners are required to be examined during the trial of the complaint filed by the respondent No.2 and there is no case made out to invoke the inherent powers under section 482 of Cri.P.C., so as to quash the proceedings in C.C. No. 403/SS of 2005. Consequently, this petition fails and the same is hereby dismissed. Rule is discharged. Ad-interim order granted earlier stands vacated.” 10. Careful consideration of the aforesaid paragraph 8 of the said decision shows that the learned Judge has not at all recorded a finding that the averments made in the complaint satisfy the tests laid down in the first - 10 - case of S.M.S. Pharmaceuticals Ltd. (supra). All that the learned Judges has observed is that the contentions raised by the Petitioners are required to examined during the trial of the complaint and therefore, no case was made out for invoking powers under section 482 of the said Code. 11. The Apex Law has Court time and again held that powers of this Court under section 482 of the said Code are to be exercised sparingly and that also in very rare cases. The perusal of the judgment of the learned Judge in Criminal Writ Petition No. 2110 of 2006 referred to above shows that after considering the averments made in the complaint, the learned Judge was of the view that powers under section 482 of the said Code should not be exercised and the petitioners should be directed to face the trial. Therefore, it is obvious that the decision of the learned Single Judge cannot be held to be per incuriam is as much as there is no finding recorded by the learned Judge that averments made in the complaint satisfy the tests laid down by the Apex Court in paragraph 19 of the 1st Judgment in the case of S.M.S. Pharmaceuticals Ltd. (supra). Thus, it - 11 - cannot be said that the learned Judge while disposing of the said Criminal Writ Petition No.2110/2006 has not followed binding precedents. The decision of the learned Single Judge has been upheld by the Apex Court as the Special Leave Petition has been summarily dismissed. 12. The present petitioners were the petitioners in Criminal Writ Petition No.2110 of 2006. The present petitioners contended in the said petition that the averments made in the complaint were not in accordance with section 141 of the said Act of 1881. The challenge by the petitioners in this petition is the same on the basis of the identical avements in the complaint. Thus, in an identical fact situation in the said petition filed by the petitioners, this Court has declined to exercise jurisdiction under section 482 of the said Code of 1973 and as pointed out earlier, the decision in the said Criminal Writ Petition No. 2101/2006 has been affirmed by the Apex Court. Therefore, proriety requires that a different view should not be taken in this case espcially when it is not disputed - 12 - that the averments made in both the complaints are identical. Therefore, in this case also, the power under section 482 of the said Code of 1973 cannot be exercised. 13. As the petition is not entertained only on the aforesaid ground, all contentions raised by the Petitioners in this petition are kept open and the petitioners can always raise those contentions before the trial court at appropriate stage. 14. I have already observed that the observations made by this Court while deciding the criminal writ petition No.2110/2006 cannot be construed to mean that this court has recorded a finding that the avernments made in the complaint comply with the requirements laid down by the Apex Court in the case of S.M.S. Pharmaceuticals Ltd. (supra). - 13 - 15. Subject to what is observed above, petition is dismissed with no order as to costs. However, it is made clear that the contentions in the petition are kept open. 16. On the request of the learned counsel appearing for the petitioners, ad-interim relief granted earlier is extended for a period of twelve weeks from today. (A.S. Oka, J)