D.G. Deshpande, J.@mdashHeard the Advocate for the petitioner, the respondent No. 1 and A.P.P. for the State-respondent No. 2.
2. In all there were originally two petitioners i.e. Mrs. Hansa V. Kapadia and Viren Kapadia. Counsel for the petitioners produced a true copy of the death certificate in respect of petitioner No. 2. It is not disputed that the petitioner No. 2 is dead, hence the proceedings against the petitioner No. 2 who was originally accused No. 4 stands abated.
3. Respondent No. 1 filed complaint under Sections 406, 409 and 420 of the I.P.C. against both the petitioners and three others before the Metropolitan Magistrate, Esplanade at Bombay. There were in all five accused in that complaint. Accused No. 1 was M/s. Polaris Travels Pvt. Ltd., of which other four accused were the Directors. There is no dispute that the complainant appointed original accused No. 1 as agent in the airlines and agreement known as "Passengers Sales Agency" was entered into between the airlines and accused No. 1 and the particulars of this agreement have been given in the complaint.
4. The accused - petitioners appeared before the Magistrate and after the complainant''s evidence was over, i.e. of Ravindran Subramanian alone and not of other witnesses, the accused - petitioners applied for discharge contending therein that no case is made out u/s 406 and 409 of the I.P.C. This application came to be rejected by the Metropolitan Magistrate on 2.9.1992 and hence this petition.
5. It was strenuously urged by the counsel for the petitioners, firstly that the entire dispute between the complainant and the petitioner was a civil dispute or a dispute of a civil nature; that no criminal intention involved in it and therefore the Magistrate was not justified in rejecting the application for discharge. Secondly, it was contended that the petitioner No. 1 was at the relevant time acting as a dummy Director of the original accused No. 1 M/s. Polaris Travels Pvt. Ltd. and she had no role to play in day-to-day affairs of the Company and the complainant could not inspite of examining himself bring anything on record to show the direct involvement of the petitioner No. 1 in the affairs of the Company and therefore there were no reasons for the Magistrate to rope in the petitioner in the instant case. Thirdly, it was contended that on the basis of the evidence of the complainant and his cross-examination that petitioner i.e. M/s. Polaris Travels Pvt. Ltd. had done a lucrative business not for itself but also for the complainant through which complainant received lacs of rupees and therefore there was no dishonest intention on the part of the petitioner in not paying the amount. Lastly, it was contended that the petitioner was an old woman of 70 years of age wholly dependent on the son-in-law and therefore considering her non-involvement, she was entitled for discharge.
6. The last of the submission made by the counsel for the petitioner on humanitarian or sympathetic grounds cannot be considered by this Court. The question has to be decided on the material available.
7. In spite of giving my anxious consideration to the submissions made by the counsel for the petitioner, I am unable to agree with any of his submissions. Firstly, counsel for the complainant pointed out that the petitioner was not a dummy Director but she has acted in the instant case i.e. in the transaction with the complainant as a Managing Director for which there was sufficient material with the complainant. Secondly, two out of the four cheques issued by the original accused No. 1 which ultimately bounced were signed by the petitioner No. 1. This according to the complainant is sufficient to show that the petitioner No. 1 has a direct role to play in the day-to-day affairs of the original accused No. 1 Company. I find strong basis in the submissions and therefore the contention of the petitioner''s Advocate in that regard has to be rejected.
8. It was also argued by the petitioner''s Advocate that petitioner No. 1 could not be roped in a case of criminal breach of trust unless the complainant could make out a case that she was involved in day-to-day affairs or management of the original accused No. 1. Such an argument may be entertained by the Court if the case is u/s 138 of the Negotiable Instruments Act or under some special statutes where only a person actively concerned with the day-to-day affairs of the Company can be made accused. The case stipulated by the complainant is under I.P.C. i.e. u/s 409 of the I.P.C. and the question is of the liability of the Company as such in the offences alleged and since the Private Limited Company acts through its Directors and since it has come on record that petitioner No. 1 was one of the Directors, she cannot try to get out of the clutches of the provisions of the I.P.C. by contending that she was not in charge of day-today affairs of the Company.
9. The third contention of the counsel for the petitioners was that the dispute between the complainant and accused is of a civil nature. It might be so, but the disputes which are of civil nature cannot be said to be excluded from the provisions of the I.P.C. If the complainant succeeds in showing that there was entrustment of the property and there was criminal breach of trust then the Criminal Court gets jurisdiction to entertain the matter. The very fact that four cheques issued by the original accused No. 1 for more than Rs. 15 lacs were bounced, primafacie show that the accused were liable to pay to the complainant an amount of Rs. 15 lacs. Whether there was a dispute between them and whether that dispute was bonafide or not is not a matter that can be considered at this stage because issuance of cheque for the amount of Rs. 15 lacs prima facie shows liability of the accused Company to the complainant. If subsequently a dispute is raised, the same may be considered by the Criminal Court while considering the defence of the accused but not at this stage.
10. It was also pointed out by the counsel for the petitioners that accused had given lucrative business to the complainant and it made payments of lacs of rupees. It might be that the accused get good business for the complainant but that was for the commission which the accused used to get, and making payment of lacs of rupees in the past will not exonerate the accused in making payment of the transactions for which the complaint is filed. I do not find any merit in the petition. The same is dismissed, Rule discharged. Stay vacated. Parties to appear before the Magistrate on 18.2.2000. Magistrate is directed to decide and dispose of the case within six months from the date of appearance of the accused i.e. on 18.2.2000. The observations made in this judgment will not influence the Magistrate while deciding the case on merits.
Certified copy expedited.
