Judgment:
Arunabha Basu, J.
1. The revisional application under Sections 401/482 of the Code of Criminal Procedure is instituted challenging the order dated 5th May, 2007 passed by learned Chief Judge, City Sessions Court, Kolkala in Criminal Revision Case No. 162 of 2006.
2. The petitioner filed the revisional application before the learned Court below, challenging the legality and validity of the order dated 27.6.2006 passed by the learned Metropolitan Magistrate, 3rd Court, Kolkata whereby and whereunder the petitioner's prayer to discharge him in connection with Complaint Case No. C/633/1999 under Sections 138/141, Negotiable Instruments Act, was injected.
3. Certified copy of the order passed by the learned Revisional Court in connection with Criminal Revision No. 162 of 2006 will show that before the learned Magistrate, petitioner herein, filed an application praying for an order of discharge on the ground that, the relation the Company, which is impleaded as accused in connection with the Complaint Case on 4.10.1996, long before the cause of action for the complaint case arose and as such the proceeding against him is not legally maintainable in connection with the complaint case. Before the learned Revisional Court, the decision of the Supreme Court in K.M. Mathew's case reported in I (1992) CCR 316 (SC) : 1992 Cri.L.J. 3779 was cited. But the learned Court, below on consideration of the latter decision of Supreme Court in Adalat Prasad case reported in III (2004) CCR 176 (SC) : 2004 C.Cr LR (SC) 1001 rejected the said contention of the petitioner.
4. In the application under Section 401 read with Section 482 of the Code of Criminal Procedure. If is the contention of the petitioner that the learned Court below committed illegality and failed to consider that the complaint case instituted against the petitioner among others is, ex facie, devoid of any legality and further continuation of the proceeding will be nothing but an abuse of the process of Court. It is the contention of the petitioner that he is arrayed as accused No. 4 in connection with the Complaint Case No. 635/1999, now pending before the Court of learned Metropolitan Magistrate, in his capacity as Director, M/s. Meca Quilts Limited. In the petition of complaint, the Company, being M/s. Meca Quilts Limited is arrayed as accused along with five others including the petitioner.
5. In the petition of complaint, the allegation against the accused persons appears to be that a cheque bearing No. 027563 dated 7.1.1999 fix a sum of Rs. 50 lakh was issued to discharge the debt find liability. The said cheque was presented on 7.1.1999 before the Bank but the said cheque was dishonoured/returned unpaid with the endorsement of the Banker, 'Account Closed'.
6. In the petition filed before this Court as well as before the learned Court below, the categorical stand of the petitioner is that, long before the said transaction which is the subject matter of the complaint case was entered into between the parties, the petitioner resigned from his post from the Board of Directors with effect from 4.10.1996. Along with the application filed before this Court, petitioner produced a xerox copy of Form No. 32 (Annexure P-4) showing that he resigned as Director of the said company with effect from 4.10.1996.
7. During the course of hearing, learned Advocate for the petitioner also produced original copy of Form No. 32, which is required to be submitted in terms of provision under Section 303(2) of the Companies Act, 1956.
8. Learned Advocate for the petitioner with his usual fairness submitted before this Court that so far as the Form No. 32 and the question of quashing a proceeding solely on the basis of the recital in Form No. 32 are concerned, there are conflicting and divergent decisions of this Court.
9. Learned Advocate for the petitioner submitted that as per the latest decision of this Court, the recital in Form No. 32 has been accepted to be a ground to quash the proceeding under Section 138 of the Negotiable Instruments Act but in the earlier decisions of this Court, the said plea was not accepted, as a ground to quash the proceeding in exercise of the power of this Court under Section 482 of the Code of Criminal Procedure.
10. It is the contention of the learned Advocate for the petitioner that in view of the latest decision of this Court, it may be considered whether in view of clear cut recital in Form No. 32, the proceeding now pending before the lower Court shall continue. Learned Advocate for the petitioner also submitted, if this Court while deciding the matter decides otherwise, in view of earlier decisions of this Court, then it will be appropriate to refer the matter to the Larger Bench for appropriate decision on this point.
11. Learned Advocate for the petitioner has submitted the following decisions:
1. Saroj Kumar Jhunjhunwala v. The State of West Bengal and Anr. II (2007) BC 218 : I (2007) CCR 278 (SC) : I (2007) CLT 360 (SC) : (2007) 1 C Cr LR (Cal) 793.
2. Saroj Kumar Poddar v. State (NCT of Delhi) and Anr. I (2007) BC 324 : 2007(1) Law Herald (SC) 273.
3. Lachhman P. Udhani and Ors. v. Ms. Redington (India) Ltd. III (2007) BC 159 : 2006 Crl. L.J. 3076.
4. S.B. Shankar v. Amman Steel Corporation, Trichirpalli II (2002) BC 166 : 2002 Crl. LJ. 836.
5. Sreekant Bangur v. State of West Bengal and Anr. 2000 C Cr LR (Cal) 363.
6. Fateh Chand Bhansali v. Hindusthan Development Corporation Ltd. (2005) 1 C Cr LR (Cal) 581.
7. Bibek Roychaudhuri and Ors. v. Virama Enterprises Private Limited 2007(2) ECR N 611.
8. N.C. Nagpal and Ors. v. The State and Anr. 1979 CRI. LJ. 998.
9. Minakshi Bala v. Sudhir Kumar and Ors. III (1994) CCR 561 (SC) : 1994 SCC (Cri) 1181.
10. State of M.P. v. Awadh Kishore Gupta and Ors. IV (2003) CCR 455 (SC) : 2004 SCC (Crl) 353.
11. State of Orissa v. Debendra Nath Padhi IV (2004) CCR 343 (SC) : (2005) 1 C Cr LR (SC) 487.
12. Eastern Coalfields Limited v. Sudama Das and Ors. 2007(1) CHN 851 (Cal/DB).
12. In Saroj Kumar Jhunjhunwala v. The State of West Bengal and Anr. (supra), the learned Single Judge of this Court was of the view that in exercise of its power under Section 482 of the Code of Criminal Procedure, this Court can look into any document provided it is admissible and reliable. Learned Single Judge of this Court considered the certified copy of Form No. 32 wherefrom it will appear that the Assistant Registrar of Companies clearly noted the fact that petitioner resigned from the directorship of the company prior to issuance of the cheques.
13. The view expressed by the learned Single Judge of this Court in Saroj Kumar Jhunjhunwala v. The State of West Bengal and Anr. (supra) finds support in Lachhman P. Udhani and Ors. v. Redington (India) Ltd. (supra) where the learned Single Judge of Madras High Court was of the view that the Form No. 32 filed with the Registrar of Companies is a public document as per Section 74 of the Indian Evidence Act, 1872. The learned Single Judge further recorded when the certified extract of such a public document is filed, the Court shall presume as to the genuineness of such certified copies in terms of provision under Section 79 of the Evidence Act.
14. In S.B. Shankar v. Amman Steel Corporation, Trichirpalli, (supra), another Single Judge of the Madras High Court also considered the scope of document furnished under Form No. 32 of the Companies Act and quashed the proceeding in exercise of power conferred under Section 482 of the Code of Criminal Procedure.
15. The contrary decisions about the scope of Form No. 32 appears in the case of Sreekant Bangur v. State of West Bengal and Anr. (supra), wherein learned Single Judge of this Court considered the scope of the document furnished but refused to quash the proceeding, after considering various decisions and held that without considering evidence that may be adduced before the learned Magistrate, the extraordinary jurisdiction under Section 482 of the Code of Criminal Procedure should not be invoked.
16. In Fateh Chand Bhansali v. Hindusthan Development Corporation Ltd. (supra), learned Single Judge of this Court in connection with case under Section 138 and 139 of the Negotiable Instruments Act, refused to quash the proceeding in exercise of the power under Section 482 of the Code of Criminal Procedure.
17. In Bibek Roychaudhuri and Ors. v. Virama Enterprises Private Limited, (supra), another Single Judge of this Court in connection with proceeding under Section 138 of the Negotiable Instruments Act also refused to quash the proceeding under Section 482 of the Code of Criminal Procedure.
18. In support of his contention that in case of conflicting views of two coordinate Benches, the matter is required to be referred to the Larger Bench. The learned Advocate for the petitioner supported his argument after referring to a Division Bench of this Court in Eastern Coalfields Limited v. Sudama Das and Ors. (supra).
19. So far as the present case is concerned, the only point raised by the petitioner that in view of the recital in Form No. 32 submitted before the Registrar of the Companies, which on the face of the document shows that long before the issuance of cheque, the petitioner has resigned from the company then no useful purpose will be served in continuing the trial against the petitioner.
20. In Saroj Kumar Jhunjhunwala v. The State of West Bengal and Anr. (supra) and in Lachhman P. Udhani and Ors. v. Redington (India) Ltd., the scope of Form No. 32 was taken into consideration and the proceeding was quashed mainly relying on the said documents. However, careful perusal of the Saroj Kumar Jhunjhunwala's case (supra), it will appear that in addition to Form No. 32, the learned Single Judge of this Court also took into consideration the admission, made by the opposite party (complainant before the Court below) about the status of the petitioner therein in connection with other cases.
21. For proper appreciation of the document in question, which is produced before this Court, it may be pointed out that under Section 303 of the Companies Act, 1956, duty is cast on the company to keep at its registered office a register of its directors, etc. So the document, which is required to be maintained, is a document created by the company and maintained by it in terms of Section 303 of the Companies Act, 1956.
22. It cannot be stated that the document which is maintained by the company at its registered office shall by itself be a public document in terms of Section 74 of the Indian Evidence Act, as because, while preparing the said document, the public authority is not involved in such creation or maintenance.
23. Under Sub-section (2) to Section 303 of the Companies Act, the following requirement is provided, which is set out below for proper appreciation:
(2) The company shall, within the periods respectively mentioned in this sub-section, send to the Registrar (a return in duplicate in the prescribed form) containing the particulars specified in the said register and (a notification in duplicate in the prescribed form) of any change among its directors, managing directors, managers or secretaries specifying the date of the change.
The period within which the said return is to be sent shall be a period of (thirty) days from the appointment of the first directors of the company and the period within which the said notification of a change is to be sent shall be (thirty) days from the happening thereof.
24. Sub-section (2) to Section 303 as reproduced above, cast a duty on the company to submit return in duplicate in prescribed form. So the return in duplicate, which is submitted in prescribed form is form No. 32 and the same is submitted before Registrar of Companies.
25. The submission of form in duplicate before the authority that is the register of companies is not again a document created by any public authority, but certainly the same is submitted before public authority, as per requirement of Sub-section (2) to Section 303 of the Companies Act, 1956.
26. In order to constitute a public document the document must be of such a nature, which falls within the purview of Section 74 of the Indian Evidence Act. The said section is set out below:
74. Public Documents.-The following documents are public documents-
(1) documents forming the acts or records of the acts-
(i) of the sovereign authority,
(ii) of official bodies and Tribunals, and
(iii) of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth, or of a foreign country;
(2) public records kept in any state of private documents.
27. It is clear that Form No. 32, by itself is not a public document within the purview of Section 74 of the Indian Evidence Act. Combined reading of Sub-section (2) of Section 303 read with Section 74 of the Indian Evidence Act and Section 76 of the Indian Evidence Act will indicate the nature of the public document.
28. Section 76 of the Indian Evidence Act is reproduced below:
76. Certified copies of Public Documents.-Every public officer having the custody of a public document, which any person has a right to inspect, shall give that poison on demand in copy of it on payment of the legal fees therefore, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorised by law to make use of a seal and such copies so certified shall he called certified copies.
29. In order to come within the purview of public document, the said document must be one, which is issued in terms of Section 76 of the Indian Evidence Act.
30. Section 76 of the Indian Evidence Act categorically states that such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorised by law to make use of a seal and such copies so certified shall be certified copies.
31. The requirement of Section 76 is not an idle formality. It stipulates procedure in order to make the document authentic and genuine. Unless such certificate is produced before a Court of Law, the same cannot be termed or fall within the category either under Section 74 of the Indian Evidence Act or under Section 76 of the Indian Evidence Act.
32. The document, which is produced before this Court, is a xerox copy of Form No. 32, which shows that with effect from 4.10.1996, the petitioner resigned from directorship. This document by itself being a submission of return in terms of Section 303 of the Companies Act cannot be termed as a public document. It is a document, which the company is required to maintain in terms of sub-section of Section 303 of the Companies Act and is required to furnish before the Registrar of companies in terms of Sub-section (2) to Section 303 of the Companies Act. Even on consideration of the document as stated to be the original Form No. 32 and produced at the time of hearing, it appears that the said document bears the signature and seal of the Managing Director of Meca Quilts Limited. The said document is dated 5th October, 1996. This document by itself in my view does not fall within the category of public document in terms of Section 74 of the Indian Evidence Act. No certified copy in terms of requirement as prescribed under Section 76 of the Indian Evidence Act has been produced. It will be premature to decide the case of the petitioner solely relying on this document, which is yet to be established and considered by leading, appropriate evidence before the learned Court below.
33. Even in respect of certified copies of public documents as stipulated under Section 76 of the Indian Evidence Act, Section 79 of the Indian Evidence Act prescribed the following:
79. Presumption as to genuineness of certified copies-The Court shall presume to be genuine every document purporting to be a certificate; certified copy, or other document, which is by law declared to be admissible as evidence of any particular fact, and which purports to be duly certified by any officer of the Central Government or of a State Government, or by any officer in the State of Jammu and Kashmir who is duly authorized thereto by the Central Government:Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf. The Court shall also presume that any officer by whom any such document purports to be signed or certified, held, when he signed it, the official character which he claims in such paper.
34. The language of the Section 79 of the Indian Evidence Act raises presumption in the category of 'shall presume'.
35. Section 4 of the Indian Evidence Act defines the word 'shall presume'.
36. Section 4 of the Indian Evidence Act is reproduced below.
4. 'May presume'-Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.
'Shall presume'-Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.
'Conclusive Proof-When one lack is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall now allow evidence to be given for the purpose of disproving it.
37. When a fact falls within the category of 'shall presume', the Court shall record the facts as proved, unless and until it is disproved. Plain reading will show that even when a fact falls within the category of 'shall presume', a rebuttable presumption is raised. Unless the presumption is rebutted, the Court shall presume the fact as proved. So it is clear that any fact falling within the category of 'shall presume' does not fall within the category of 'conclusive proof. Only in cases which falls within the category of 'conclusive proof, the Court shall not allow evidence to be given for the purpose of disproving it.
38. At the stage of hearing, the application in exercise of power under Section 482 of the Code of Criminal Procedure, this Court is not considering the evidence. In fact in this case, even before the evidence is adduced, the petitioner solely on relying the statement in Form No. 32, sought to quash the proceeding or the ground that he resigned from the directorship of the company long before the issuance of the cheque.
39. I have already pointed out that Form No. 32, by itself is a document, created by the company and does not fall within the category of public document, the certified copy issued by the Registrar of Company in terms of Section 76 of the Indian Evidence Act, will fall within the category of public document, but here again such document even issued by public authority in terms of Section 76 of the Act, does not fall within the category of 'conclusive proof as defined under Section 4 of the Indian Evidence Act. It will be premature on the part of this Court to rely on annexure, filed along with the application, which prima facie is not even a document issued under Section 76 of the Indian Evidence Act to quash the entire proceeding, now pending for trial before the learned Court below. In other words the fact whether the petitioner resigned from the company before issuance of cheque, still remains in the category of disputed fact, which is required to be proved or disproved at the stage of trial.
40. In view of my above discussion, it will be appropriate to look into the decision of Supreme Court about the scope of inherent jurisdiction and the exercise of such power under Section 482 of the Code of Criminal Procedure.
41. The matter came up for consideration before the Supreme Court in State of Haryana and Ors. v. Bhajan Lal and Ors. I (2006) CCR 209 (SC) : 1992 Supp (1) SCC 335.
102. ...
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, acompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in it, support of the same does not disclose the commission of any offence and make out a case against the accused.
(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the bases of which no prudent person can ever reach in just conclusion that thorn is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
42. In a recent decision in Didigam Bikshapathi and Anr. v. State of A.P. 2007 AIR SCW 7411, the Supreme Court considered the scope of the inherent powers under Section 482 of the Code of Criminal Procedure and also took into consideration its earlier decision in Bhajan Lal's case (supra). The Supreme Court held that the power of the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution.
43. So far as the present case is concerned, I have already decided that even when a document is purported to have been issued under Section 76 of the Indian Evidence Act and falls within the category of public document, the said document by itself does not fall within the category of 'conclusive proof. When a document falls within the category of 'shall presume' the Court cannot definitely say that the said fact will not be disputed by way of rebuttal evidence. At the stage of hearing an application under Section 482 of the Code of Criminal Procedure, so far as the present case is concerned, there is nothing before the Court that the document produced is a document which falls within the category of Section 76 of the Indian Evidence Act. This Court cannot presume that there is a document issued in terms of Section 76 of the Indian Evidence Act unless the same is produced before this Court. Such presumption will not only be premature but may amount to jumping to a conclusion not warranted in the given circumstances of this case and on consideration of the documents produced before this Court. Even in case of public document which falls within the category of Section 76 of the Indian Evidence Act, Section 79 of the Indian Evidence Act at best raises a presumption falling within the category of 'shall presume'. The Court solely relying on the said document cannot come to a conclusion that even though the presumption is rebuttable, the same may not be rebutted by way of adducing evidence.
44. This being the position, I am unable to agree with the learned Advocate of the petitioner that relying Form No. 32, petitioner may be discharged from the case, now pending before the learned Court below.
I am also not in agreement with the learned Advocate for the petitioner that this a fit case which is required to be referred to the Larger Bench as because I do not find any conflict with the decision rendered herein and with the earlier decisions passed by this Court, as mentioned above.
45. In view of my above discussion, I am of the view that the present application under Section 401 read with Section 482 of the Code of Criminal Procedure is devoid of any merit and is liable to be dismissed.
46. The application is dismissed accordingly.
47. There shall he no order as to costs.
48. Interim order of stay granted earlier stands vacated.
49. I make it clear that observation recorded is only for the purpose of deciding application under Section 482 of the Code of Criminal Procedure. Learned Court below shall proceed with the trial independently without being influenced in any way by the observations recorded in the order.
50. Criminal Section is directed to send a copy of the order to learned Court below urgently. The case is pending for some time, as such the learned Magistrate is directed to take all efforts for expeditious trial without granting unnecessary adjournment to any of the parties.
51. Criminal Section is also directed to supply xerox certified copy of the order within three days as and when applied for.