Classification of criminal cases in criminal manual
Sub : A summary, B summary and C summary criminal cases
Decision :
Criminal Cases are classified in Criminal Manual as under: Class ‘A’ cases-The cases which are (i) TRUE and (ii) wherein an accused is tried and in the absence of conclusive evidence is acquitted. In class ‘B’ cases-Wherein no offence has been committed at all either by the accused or by anyone else, but wherein the complaint is found to be false and maliciously false. Class ‘C’ cases-Wherein no offence has been committed at all either by the accused or by anyone else, but wherein the case is found to be “neither true nor false” or “false but not maliciously false”.The above A.B.C cases are also referred to as A Summary, B Summary and C Summary.
The procedure to be followed by Magistrate after receipt of B-summary report from the police:-In criminal cases, the Magistrate sometimes issues an order u/s 156(3) of CrPC for investigation by police. In such cases, after investigation, the police can submit the following types of reports as provided in the Criminal manual. an A-summary report, a B-summary report or a C-summary report. [ Explain Each]In case of cases where the magistrate gets a B-summary report from police the magistrate has to proceed as follows:
i) The court after going through the contents of the investigating papers, filed u/s 173 ofP.C., is of the opinion that the investigation has not been done properly, the court has no jurisdiction to direct the Police to file the charge sheet however, the Court may direct the Police for re or further investigation and submit a report, which power is inherent under section 156(3)of Cr.p.c, but before taking cognizance such exercise has to be done. This view is supported by the decisions of the Hon'ble Apex Court in a decision reported inAIR 1968 S.C. 117 between Abhinandan Jha and Dinesh Mishra (para 15) and also Full Bench decision of Apex Court reported in (1980) SCC 91 between Kamalapati Trivedi and State of West Bengal.2.
ii) If the court is of the opinion that the material available in the 'B' Summary Report makes out a cognizable case against the accused and the same is sufficient to take cognizance and to issue process, then the court has to record its opinion under Sec.204 of P.C., and the Court has got the power to take cognizance on the contents of 'B' Summary Report and to proceed against the accused, by the issuance of process.
iii) If the court is of the opinion that the 'B' Summary Report submitted by the Police has to be rejected, then by expressing its judicious opinion, after applying its mind to the contents of 'B' report, the court has to reject the 'B' Summary Report.1.
iv) After the rejection of the 'B' Summary Report, the court has to look into the private complaint or Protest Petition as the case may be, and contents therein to ascertain whether the allegations made in the Private complaint or in the Protest Petition constitute any cognizable offence, and then it can take cognizance of those offences and thereafter, provide an opportunity to the complainant to give sworn Statement and record the statements of the witnesses if any on the side of the complainant as per the mandate of Sec.200 P.C.2.
v) If the court is of the opinion that the materials collected by the police in the report submitted under section 173of Cr.p.c. are not so sufficient, however, there are sufficient materials that disclose that a cognizable offence has been committed by the accused, the court can still take cognizance of the offence/s undersection 190read with 200 Cr.P.C. on the basis of the original complaint or the protest petition as the case may be. After taking cognizance and recording sworn statement of the complainant and statements of witnesses if any and also looking into the complainant/Protest Petition and contents therein, if the Magistrate is of the opinion that, to ascertain the truth or falsity of the allegations further inquiry is required and he thinks fit to postpone the issue of the process he can still direct the investigation under section 202of Cr.p.c., to be made by a Police officer or by such other officer as he thinks fit, to investigate and submit a report, for the purpose of deciding whether or not there is sufficient ground for proceeding against the accused. In the above eventuality, care should be taken that, the case shall not be referred to the Police under section 156(3)of Cr.p.c, once the magistrate takes cognizance and starts inquiring into the matter himself.3.
vi) After taking such report under section 202of Cr.P.C., and looking to the entire materials on record, if the magistrate is of the opinion that there are no grounds to proceed against the accused, then the Magistrate is bound to dismiss the complaint or the Protest Petition u/s.203 ofP.C. as the case may be.
vii) If in the opinion of the Magistrate there are sufficient grounds to proceed against the accused, on examination of the allegations made in the Protest Petition or in the complaint, as the case may be and also after perusal of the sworn statement, then he has to record his opinion judiciously and issue summons to the accused by exercising power u/s.204 of Cr.P.C.
Gunmala Sales Pvt Ltd vs Anu Mehta and ors 2015 (5) Mh.L.J. ( S.C.) I
Sub : Role of Directors of Companies under S. 138 & S. 141 of Negotiable Instruments Act 1881
Issue :
When can Directors of Companies be held responsible for offence punishable u/s 138 of Negotiable Instruments Act 1881.
Decision :
THE ROLE OF THE DIRECTORS OF COMPANIES UNDER CRIMINAL COMPLAINT UNDER SECTION 138 OF NEGOTIABLE INSTRUMENT ACT, 1881:The Hon’ble Supreme Court in the case of Gunmala Sales Pvt Ltd vs Anu Mehta and ors reported in 2015 (5) Mh.L.J. ( S.C.) I = 2015 (3) Mh.L.J. ( cri) (S.C.) 523 = ( 2015) 1 SCC 103, while explaining the ambit, scope and purport of section 138 and section 141 in para 34 held thus:34-We may summarise our conclusions as follows:34.1 Once in a complaint filed under section 138 read with section 141 of the NI Act the basic averment is made that the Director was in charge of and responsible for the conduct of the business of the company at the relevant time when the offence was committed, the Magistrate can issue process against such Director.34.2 If a petition is filed under section 482 of the Code for quashing of such a complaint by the Director, the High Court may, in the facts of the particular case, on an overall reading of the complaint, refuse to quash the complaint because the complaint contains the basic averment which is sufficient to make out a case against the Director.34.3.
In the facts of a given case, on an overall reading of the complaint, the High Court may, despite the presence of the basic averment, quash the complaint because of the absence of more particulars about the role of the Director in the complaint. It may do so having come across some unimpeachable, incontrovertible evidence which is beyond suspicion or doubt or totally acceptable circumstances which may clearly indicate that the Director could not have been concerned with the issuance of cheques and asking him to stand the trial would be an abuse of process of Court. Despite the presence of basic averment, it may come to a conclusion that no case is made out against the Director. Take for instance a case of a Director suffering from a terminal illness who was bedridden at the relevant time or a Director who had resigned long before the issuance of cheques. In such cases, if the High Court is convinced that prosecuting such a Director is merely an arm-twisting tactic, the High Court may quash the proceedings. It bears repetition to state that no establish such case unimpeachable, incontrovertible evidence which is beyond suspicion or doubt or some totally acceptable circumstances will have to be brought to the notice of the High Court. Such cases may be few and far between but the possibility of such a case being there cannot be ruled out. In the absence of such evidence or circumstances, the complaint cannot be quashed. 34.4 No restriction can be placed on the High Court’s powers under section 482 of the Code. The High Court always uses and must use this power sparingly and with great circumspection to prevent interalia the abuse of the process of the Court. There are no fixed formulae to be followed by the High Court in the circumstances of each case. The High Court at that stage does not conduct a mini-trial or roving inquiry, but nothing prevents it from taking unimpeachable evidence or totally acceptable circumstances into account which may lead it to conclude that no trial is necessary qua a particular Director.
The Supreme Court in the aforesaid judgment in para 34.2 has clearly held that on an overall reading of the complaint, the High Court can refuse to quash the complaint because the complaint contains the basic averments which are sufficient to make out a case against the Director. The Supreme Court in the case of K.K. Ahuja Vs V.K. Vora and anr reported in 2009 MhlJ Online ( Cri) (S.C.) 42= ( 2009) 10 SCC 48 in para 27held as under 27-The position under section 141 of the Act can be summarized thus-i. If the accused is the Managing Director or a Joint Managing Director, it is not necessary to make an averment in the complaint that he is in charge of and is responsible to the company, for the conduct of the business of the company. It is sufficient if an averment is made that the accused was the Managing Director or Joint Managing Director at the relevant time. This is because the prefix “ Managing” to the word “ Director” makes it clear that they were in charge of and are responsible to the company, for the conduct of the business of the company. ii. In the case of a Director or an officer of the company who signed the Cheque on behalf of the company, there is no need to make a specific averment that he was in charge of and was responsible to the company, for the conduct of the business of the company or make any specific allegations about consent, connivance or negligence. The very fact that the dishonored Cheque was signed by him on behalf of the company, would give rise to responsibility under subsection (2) of Section 141.iii.In the case of a Director, secretary or manager [ as defined in Section 2 (24) of the Companies Act] or a person referred to in clause (e) and (f) of Section 5 of the Companies Act, an averment in the complaint that he was in charge of and was responsible to the company, for the conduct of the business of the company is necessary to bring the case under Section 141 (1) of the Act. No further averment would be necessary for the complaint, though some particulars will be desirable. They can also make liable under section 141 (2) by making necessary averments relating to consent and connivance or negligence, in the complaint, to bring the matter under that subsection. iv. Other officers of a company cannot be made liable under subsection (1) of Section 141. Other officers of a company can be made liable only under subsection (2) of Section 141, by averring in the complaint their position and duties in the company and their role in regard to the issue and dishonor of the Cheque disclosing consent, connivance, or negligence.