MAC CHARLES I PVT Vs. CHANDRASHEKAR

JUDGEMENT

(1.) THE following questions of law have been referred to this Bench for decision by an order of the Hon'ble Chief justice :

(2.) THE above reference to this Bench arises this way : a Complaint Petition came to be filed by the complainant under Section 200 of Cr. P. C. against the 12 accused persons alleging the commission of offence under Section 138 of the Negotiable Instruments Act before the trial Court. The accused No. 1 in that case is the company and the accused Nos. 2 to 10 are the Directors of the said company who are alleged to be the persons incharge of the day-to-day affairs of the said company. The accused Nos. 11 and 12, who are the respondents herein are the employees of the first accused/company. The first accused-company had issued two cheques in favour of the complainant. They were both dated 23-11 -1996. The drawer of these two cheques is the company and they are alleged to have been signed on behalf of the company by its employees viz. , the accused Nos. 11 and 12. These two cheques on being presented to the Bank have been dishonoured for want of sufficient funds. Thereupon the complainant got issued a legal notice to the accused which was stated to have been duly served on them on 18-3-1994. The accused did not issue any reply, nor did they comply with the terms of the said legal notice issued by the complainant. Consequent thereupon, the complainant instituted a complaint before the trial Court against the accused for having committed the alleged offence under section 138 of the Negotiable instruments Act. The trial Court took cognizance of the offence alleged against the accused on 11-9-1997 and directed for issue of summons to all the accused. Pursuant to which, the accused Nos. 11 and 12 (the respondents herein) entered appearance in the case through their counsel and so also the accused No. 10. In the course of the proceedings, the trial Court having found that summons to the accused persons A-l to A-9 could not be served under the process of law and their presence cannot be secured within a. reasonable time, passed an order on 13-3-12000 splitting up of the case against the accused Nos. 1 to 10 from that of the accused Nos. 11 and 12. After the case against the accused Nos. 1 to 10 came to be split up by the trial Court in the manner as contemplated under Chapter IV of the karnataka Criminal Rules of Practice, 1968, the case as against the accused Nos. 10, 11 and 12 was proceeded with further. On 20-5-2000 the plea of the respondents as well as the accused No. 10 had been recorded. The said accused having pleaded not guilty and claimed to be tried, the complainant adduced evidence on his behalf in the case. In the meantime, the accused No. 10 approached this Court challenging the order taking cognizance of the offence against him and the Petition filed by him came to be allowed. Consequently the accused No. 10 stood discharged in the case. As of now, the trial of the case is pending against the re-spondents herein who are accused Nos. 11 and 12. When the matter was set down for hearing arguments, an application came to be filed before the trial Court challenging the order dated 13-3-2000 by the respondents herein. By that application they also sought far their discharge. That application of the respondents herein came to be dismissed by the trial Court on 5-8-2004. Aggrieved thereby, the respondents herein filed a Revision Petition before the Sessions Court which came to be dismissed on 17-8-2004. Challenging both the orders the respondents herein came up before this Court by filing a petition under Section 482 of Cr. P. C. The said Criminal Petition after contest, came to be disposed of on 4-1-2005 with a direction to the: complainant to take steps to proceed against the accused Nos. 1 to 9 as well, in addition to the accused Nos. 11 and 12. In that Criminal Petition, the learned single judge of this Court has however held that the order of splitting up of the case against the accused persons A-l to A-9 is bad in law. It appears that the said order has become final and conclusive as none of the parties have challenged the said order. Thereafter the respondents herein stated to have filed a memo furnishing the addresses of the accused Nos. 2 to 9 for issue of summons to them before the trial Court. The complainant has however filed an application to take out paper publication against the accused Nos. 1 to 9. That is to say, the complainant sought for issue of notice to them by publication in the local news paper which was in circulation in the locality. The trial Court granted the prayer made in the application of the complainant. It appears that the said order came to be passed by the trial Court pursuant to the observations made by this Court in the criminal petition filed under Section 482 of Cr. P. C. by the respondents in Criminal Petition No. 2906/ 2004. The said order of the trial Court granting the prayer of the complainant came to be challenged in revision by the respondents herein. The said Revision Petition having been allowed, the complainant has come up before this Court by filing a petition under section 482 of Cr. P. C. In the petition so filed by the complainant under Section 482 of cr. P. C. in Criminal Petition No. 778/2005, the present reference came to be made by the learned single Judge.

(3.) WE have heard the arguments of the learned counsel on either side on the reference made to this Bench at a considerable length and carefully perused the relevant provisions of Cr. P. C. , the Karnataka Criminal rules of Practice and the Negotiable Instruments Act with their assistance.