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TMI Blog1998 (11) TMI 688X X X X Extracts X X X X X X X X Extracts X X X X ..... al v. Swapin Kumar Gniha,: 1982CriLJ819 and in the case of State of Haryana v. Bhajan lal,: 1992CriLJ527 as also in the case of Union of India v. B.R. Bajaj,: 1994CriLJ2086 , lend concurrence to the view as above. The factum of exercise of revisional jurisdiction under Section 482 of the Code of Criminal Procedure or that of the provisions under Article 226 of the Constitution does not really make any difference to this well settled proposition that investigation can be quashed only in the event of non-disclosure of a cognizable offence in the first information report. 2. The revisional jurisdiction as conferred on to the High Court in terms of provisions of Section 482 of the Code of Criminal Procedure may be exercised to give effect to an order under the Code; to prevent abuse of the process of the Court; to otherwise secure the ends of justice. It is undoubtedly true that no general principle of rule can be evolved to govern the exercise of this inherent jurisdiction of the Court as saved by the Cede and it will be a matter for determination in each individual case whether the circumstances obtaining in that case make it incumbent on the Court to exercise such power to achieve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation .'-For the purposes of this Section, "debt or other liability" means a legally enforceable debt or other liability." 4. Incidentally be it noted that the Chapter containing the penalties in case of dishonour of cheques for insufficiency of funds in the accounts has been inserted by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment Act), 1988 with effect from 1-4-1989. The Section finds itself in Chapter XVII of the Negotiable Instalments Act which stands incorporated by the Act of 1988 in place and state of the ' 'Notaries Public' by reason of the repeal of the same by the Notaries Act, 1952. This Chapter has been inserted with a view to enhance the acceptability of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the offences by companies has also been included in the said new Chapter. In order to ensure that genuine and honest bank customers are not harassed or put to inconvenience, sufficient safeguards have also been provided in the proposed new Chapter. Such safeguards are - (a) that no Court shall take cognizance of such offence except on a complaint, in writing, made by the payee or the holder in due course of the cheque; (b) that such complaint is made within one month of the date on which the cause of action arises; and (c) that no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate or a Judicial Magistrate of the first class shall try any such offence." 5. At this juncture, it would also be convenient to note Section 22(1) of the Sick Industries Act for its true purport and for proper appreciation of the submissions made in the matter. Section 22(1) reads as follows: "Where in respect of an industrial company, an inquiry under Section 16 is pending or any scheme referred to under Section 17 is under preparation or consideration or a sanctioned scheme is under implementation or where an appeal under Section 25 relating to an industrial C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leted on 10-3-1996 and the declaration of the Company as a sick Company was effected on 17-7-1997, that is to say more than one year and four months later than the completion of offence. In any event, once the offence is complete and the liability for prosecution has accrued, question of stay of prosecution does not arise without there being a specific exclusion clause in the relevant statute. Oblique reference, if at all, would not do. It is on this score, we shall have to appreciate as to whether Section 22(1) of the Sick Industries Act has any effect on the pending proceeding. The language of Section 22, in particular the heading records: "Suspension of legal proceedings, contracts, etc.," and it is on this score it has been contended that 'legal proceedings' ought to be read to include both civil and criminal proceedings and as such Section 22(1) authorises the Court atleast to suspend the proceedings pending against the Director till after the matter is concluded by the Board in terms of the provisions of the Sick Industries Act. We are, however, unable to lend our concurrence to the same. Section 138 is a penal provision and incorporates a strict liability a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a special enactment brought into existence to meet the specific contingencies therein and this cannot be applied in the absence of a specific provision to negate the effect of another legislative provision, to wit, Section 138 of the Negotiable Instruments Act, specially in the absence cf extending the ambit of the provision of Section 22(1) to the criminal element involved by reason of the other statute. A plain reading of Section 22 of the Sick Industries Act reveals the true intent of the legislature to keep in abeyance the civil liability or debt of an industrial company. Sub-section (3) of Section 22 of the Sick Industries Act also lends support to the observation as above. For convenience sake, sub-section (3) is set out herein below. It reads as under: "Where an inquiry under Section 16 is pending or any scheme referred to in Section 17 is under preparation or during the period of consideration of any scheme under Section 18 or where any such scheme is sanctioned there under for due implementation of the scheme, the Board may by order declare with respect to the sick industrial company concerned that the operation of all or any of the contracts, assurances of proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellate authority. What the section contemplates is that none of the things mentioned therein can be allowed to take place without the consent of the Board or the appellant authority despite the provisions to the contrary in me Companies Act, 1956. Its sphere of operation is confined to proceedings for the winding up of an industrial company. It does not in any way bar prosecution of a company or any of its employees under the provisions of the Negotiable Instruments Act or any other penal law." 9. Some reliance was placed on the decision of the Supreme Court in the case of Maharashtra Tubes Ltd v. S.J.I. Corporation of Maharashtra Ltd., : [1993]1SCR340 in support of the petition, wherein the Supreme Court observed that the expression 'proceedings' in Section 22(1) cannot be confined to legal proceedings understood in the narrow sense of proceedings in a Court of law or a legal tribunal for attachment of debt as property. While it is true that the Supreme Court desired that a wider meaning and a broader interpretation ought to be had in so far as the word 'proceedings' is concerned, but the contextual facts of the Supreme Court decision does not, in fact, len ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (4)ALD229 , ought to be noted wherein the learned single Judge observed that the words 'other legal proceedings' will not embrace proceedings like those under Section 138 of the Negotiable Instruments Act. The learned single Judge went on to observe that the criminal proceedings, particularly like Section 138 of the Act, have no bearing whatsoever to the purposes for which this section has been enacted. 10. In the case of Sri Srinivasa Trading Co. v. Slate of A. P., 1997 (2) ALT (Crl) 626 another learned single Judge of this Court while dealing with a matter pertaining to the Provincial Insolvency Act vis-à-vis Section 138 of the Negotiable Instruments Act observed that the offence under Section 138 is a statutory offence and the petitioners 1 to 3 are being prosecuted for the issue of cheque without there being sufficient funds in the bank and thus the proceedings are totally different and by no stretch of imagination it can be said that Section 28(2) prohibits the continuation of criminal proceedings initiated for dishonour of cheques under Section 138 of the Negotiable Instruments Act without the leave of the Court against a person who is seeking to adjudicate as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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