Supreme Court Explains Tests To Be Applied While Sentencing In A Criminal Case

           It must be mentioned right at the outset that the Supreme Court most recently on October 22, 2019, in State of Madhya Pradesh vs Udham and others in Criminal Appeal No. 690 of 2014 has briefly explained the three tests to be applied while sentencing in a criminal case. It has laid down in no uncertain terms without mincing any words that, “The aspect of sentencing should not be taken for granted, as this part of Criminal Justice System has determinative impact on the society.” Very rightly so!

To start with, this latest, landmark and extremely laudable judgment authored by Justice NV Ramana for himself, Justice Mohan M Shantanagoudar and Justice Ajay Rastogi sets the dice rolling by first and foremost stating in para 1 that, “The present appeal is directed by the appellant-State against the final order dated 06.11.2012, passed by the High Court of Madhya Pradesh (Gwalior Bench) in Criminal Appeal No. 659 of 2011, whereby the High Court partly allowed the appeal filed by the respondents-accused herein and reduced the sentence awarded by the Trial Court to the period already undergone for the offences under Section 326 of the Indian Penal Code [hereinafter referred to as ‘IPC’] read with Section 34 of IPC, and Section 452 of the IPC.”

While presenting the prosecution version, it is then stated in para 2 that, “The prosecution case is that the complaint lodged a report on 15.04.2008 that at around 9 p.m., while he was sitting inside his house with three other people, the respondents-accused barged in, carrying weapons. More specifically, respondent nos. 1 and 3 were carrying axes, while respondent nos. 2 and 4 were carrying sticks. The respondents-accused asked the complainant why he had not kept his cow tied, and subsequently, on respondent no. 4’s exhortation, the respondents-accused attacked the complainant and the others present at that time resulting in various injuries to them. Respondents-accused then allegedly threatened the complainant that if he did not keep his cow confined, he would be killed.”

To put things in perspective, it is then elaborated upon in para 3 while putting across what the Trial Court ruled upon that, “The Trial Court tried the respondents-accused and ultimately convicted them for the offences under Section 326 read with Section 34 of IPC as well as the offence under Section 452 of IPC. The respondents-accused were sentenced to undergo 3 years rigorous imprisonment and a fine of Rs. 250/- (Rupees Two Hundred and Fifty Only) each for the offence under Section 326 read with Section 34 of IPC. They were further sentenced to undergo rigorous imprisonment for 1 year with a further fine of Rs. 250/- (Rupees Two Hundred and Fifty Only) each for the offence under Section 452 of IPC. In case of default of payment of fine, they were to undergo further rigorous imprisonment for 6 months. All sentences were made to run concurrently by the Trial Court.”

As a corollary, what follows next is illustrated in para 4 that, “Being aggrieved, the respondents-accused filed an appeal before the High Court, challenging only the quantum of sentence imposed on them by the Trial Court. Vide impugned order, the High Court partly allowed the appeal and reduced the sentence to the period of imprisonment already undergone by them, which was a period of 4 days, while enhancing the fine amount imposed upon them by Rs. 1500/- (Rupees One Thousand Five Hundred Only) each. The respondents-accused were directed to deposit the enhanced fine within a period of 30 days, failing which they were to undergo simple imprisonment for a period of 30 days.”

As it turned out, para 5 then states that, “Aggrieved by the impugned order, the State has filed the present appeal challenging the order of the High Court reducing the sentence awarded to the respondents-accused. The learned counsel for the appellant-State submitted that the High Court erred in not considering the gravity of the offence and the facts and circumstances of the case, particularly the fact that the respondents-accused had undergone imprisonment of only 4 days.”

Simply put, para 6 then enumerates that, “On the other hand, the learned counsel for the respondents-accused submitted that the High Court has correctly appreciated the facts and circumstances of the case in passing the impugned order, and therefore, the same does not merit any interference from this Court.”

After hearing the learned counsel for the parties as mentioned in para 7, it is then envisaged in para 8 that, “At the outset, it is pertinent to note that the reasoning of the High Court, for passing the impugned order and partly allowing the appeals of the respondents-accused herein, is limited to one sentence. The High Court states in its order that looking to the nature of the offence, the fact that this is the first offence of the respondents and the period of sentence already undergone by them, it is passing the impugned order.”

It would be of immense significance to note what is then stated so eloquently, elegantly and effectively in para 9 that, “At this stage the observations of this Court in Accused ‘X’ v. State of Maharashtra, (2019) 7 SCC 1, in which two of us were part of the Bench, with respect to sentencing in India are relevant here-

49. Sentencing is appropriate allocation of criminal sanctions, which is mostly given by the judicial branch. [Nicola Padfield, Rod Morgan and Mike Maguire, “Out of Court, Out of Sight? Criminal Sanctions and No Judicial Decision-making”, The Oxford Handbook of Criminology (5th Edn.).] This process occurring at the end of a trial still has a large impact on the efficacy of a criminal justice system. It is established that sentencing is a socio-legal process, wherein a Judge finds an appropriate punishment for the accused considering factual circumstances and equities. In light of the fact that the legislature provided for discretion to the Judges to give punishment, it becomes important to exercise the same in a principled manner. We need to appreciate that a strict fixed punishment approach in sentencing cannot be acceptable, as the Judge needs to have sufficient discretion as well.

50. Before analysing this case, we need to address the issue of the impact of reasoning in the sentencing process. The reasoning of the trial court acts as a link between the general level of sentence for the offence committed and to the facts and circumstances. The trial court is obligated to give reasons for the imposition of sentence, as firstly, it is a fundamental principle of natural justice that the adjudicators must provide reasons for reaching the decision and secondly, the reasons assume more importance as the liberty of the accused is subject to the aforesaid reasoning. Further, the appellate court is better enabled to assess the correctness of the quantum of punishment challenged, if the trial court has justified the same with reasons…”

(emphasis supplied)”

While pooh-poohing the manner followed by the High Court in sentencing the accused, it is then pointed out in para 10 that, “In the present case, it is clear that there is no detailed analysis of the facts of the case, the nature of the injuries caused, the weapons used, the number of victims, etc. given by the High Court in the impugned order. The High Court while sentencing the accused, has not taken into consideration the second charge proved against the respondents-accused herein, under Section 452 of IPC. Even the fact that the respondents-accused had only undergone sentence of 4 days at the time of passing of the impugned order, brings into question the High Court pointing to the same as a reason for reducing their sentence. As such, the order of the High Court merits interference by this Court.”

While underscoring the invaluable importance of the sentencing policy, para 11 then postulates that, “We are of the opinion that a large number of cases are being filed before this Court, due to insufficient or wrong sentencing undertaken by the Courts below. We have time and again cautioned against the cavalier manner in which sentencing is dealt in certain cases. There is no gainsaying that the aspect of sentencing should not be taken for granted, as this part of Criminal Justice System has determinative impact on the society. In light of the same, we are of the opinion that we need to provide further clarity on the same.”

While continuing in the same vein, it is then very rightly articulated on sentencing policy in para 12 that, “Sentencing for crimes has to be analyzed on the touch stone of three tests viz., crime test, criminal test and comparative proportionality test. Crime test involves factors like extent of planning, choice of weapon, modus of crime, disposal modus (if any), role of the accused, anti-social or abhorrent character of the crime, state of victim. Criminal test involves assessment of factors such as age of the criminal, gender of the criminal, economic conditions or social background of the criminal, motivation for crime, availability of defense, state of mind, instigation by the deceased or any one from the deceased group, adequately represented in the trial, disagreement by a judge in the appeal process, repentance, possibility of reformation, prior criminal record (not to take pending cases) and any other relevant factor (not an exhaustive list).”

Not stopping here, it is then stipulated in para 13 that, “Additionally, we may note that under the crime test, seriousness needs to be ascertained. The seriousness of the crime may be ascertained by (i) bodily integrity of the victim; (ii) loss of material support or amenity; (iii) extent of humiliation; and (iv) privacy breach.”

Of course, it is then rightly elaborated upon in para 14 that, “Coming to the appropriate sentence which is to be imposed on the respondents-accused in this case, the facts of this case need closer scrutiny. The respondents-accused entered the house of the complainant, attacked the others present with axes and with sticks. Four people, including the complainant, were injured. The injuries caused were incised wounds on the hands and backs of the victims, an incised wound next to the ear of one of the victims and bruising, etc. The respondents-accused were convicted for the offence under Section 326 read with Section 34 of IPC, which carries a maximum sentence of life imprisonment, or of imprisonment of a term which may extend to ten years, and fine. They were also convicted under Section 452 of IPC, which carries a maximum sentence of seven years along with fine.”

It cannot be lost on us that it is then also rightly pointed out in para 15 that, “The respondents-accused herein were males of age 33 years, 33 years, 28 years and 70 years respectively at the time of the incident. The main allegation as against the respondent nos. 1 and 3 is that they had used an axe to attack the victim. In this scuffle there is no dispute that some of the respondent-accused herein were also injured profusely. Further the motivation seems to be that the cow belonging to the victims had entered the household of the accused and the respondent no. 1 with his co-accused are proved to be the aggressor herein. From the perusal of the record, the injuries on some of the victims are not specifically attributed. The respondent group was numerically matched with that of the victims and there were two respondents-accused within the group carrying lathis. The bodily integrity was compromised as a result of the injury caused, but there was no evidence led to indicate any permanent establishments of any part. The scope of intrusion of privacy due to the assault is also minimal. There was no material destruction involved in the crime.”

To put it succinctly, it is then observed in para 16 that, “In this context, we need to note that the facts of the case highlighted above, however, need to be balanced with the fact that this was the first offence committed by the respondents-accused and that the motive, which is stated to be trivial. There is a requirement to treat the crime committed herein differently than other objectionable situations such as police atrocities etc. [refer to Yashwant v. State of Maharashtra, AIR 2008 SC 4067]. Having regard to the fact that the occurrence of the crime is of the year 2008 and the respondents-accused have been, in a way, only ordered to undergo four days of jail term with a fine of Rs 1,500/-, we need to enhance the same to commensurate with the guilt of the respondents-accused.”

Going ahead, it is then observed in para 17 that, “Comparatively, having perused certain precedents of this Court, we are of the considered opinion and accordingly direct that for the commission of the offence under Section 326 of IPC read with Section 34 of IPC, the respondent nos. 1, 2 and 3 are sentenced to serve rigorous imprisonment for 3 months and to pay a fine of Rs. 75,000/- (Rupees Seventy-Five Thousand Only)  each within a period of 1 month, on default of payment of which they are to suffer simple imprisonment for 3 months. For the offence under Section 452 of IPC, the respondent nos. 1, 2 and 3 are sentenced to serve rigorous imprisonment for 3 months and to pay a fine of Rs. 25,000/- (Rupees Twenty-Five Thousand Only) each within a period of 1 month, on default of payment of which they are to suffer simple imprisonment for 3 months.”

Furthermore, it is then held in para 18 that, “For the offence under Section 326 of IPC read with Section 34 of IPC, the respondent no. 4, who is presently aged around 80 years, is sentenced to serve rigorous imprisonment for 2 months and to pay a fine of Rs. 50,000/- (Rupees Fifty Thousand Only) within a period of 1 month, on default of payment of which he is to suffer simple imprisonment for 1 month. For the offence under Section 452 of IPC, respondent no. 4 is sentenced to serve rigorous imprisonment for 2 months and to pay a fine of Rs. 15,000/- (Rupees Fifteen Thousand Only) within a period of 1 month, on default of payment of which he is to suffer simple imprisonment for 1 month.”

Coming to the last two paras, para 19 holds that, “The above sentences are to run concurrently. Further, the respondents are directed to be taken into custody forthwith, to serve out their remaining sentence, as imposed hereinabove.” Lastly, the last para 20 concludes by holding that, “Accordingly, the appeal is partly allowed and the impugned order of the High Court is modified in the afore-stated terms.”

On a concluding note, it may well be said that it is a very key judgment from the sentencing perspective in criminal cases as it lays down the tests to be applied in such cases which we have already discussed quite elaborately in various paras stated above of this noteworthy judgment! The three-Judge Bench of Apex Court very rightly cautions the High Courts and all the other lower courts that the aspect of sentencing should not be taken for granted, as this part of Criminal Justice System has determinative impact on the society! So the Judges should weigh carefully all the various factors which can tilt the sentencing before arriving at any decision!

Sanjeev Sirohi

Witness Can Be Called Interested Only When He/She Derives Some Benefit Seeing An Accused Person Punished: Supreme Court

It has to be remarked right at the outset that in a latest, landmark and laudable judgment titled Sadayappan @ Ganesan Vs. State Represented by Inspector of Police in Criminal Appeal No. 1990 of 2012 delivered on April 26, 2019  has explicitly, elegantly and eruditely ruled while rejecting a defence contention in a criminal appeal that, “The witness may be called ‘interested’ only when he/she derives some benefit from the result of a litigation in a civil case, or in seeing an accused person punished”. It was also held that, “A witness cannot be said to be ‘interested’ witness merely by virtue of being a relative of the victim.” Very rightly said!

First and foremost, this noteworthy judgment authored by Justice NV Ramana for himself and Justice Mohan M Shantanagoudar sets the ball rolling in para 1 by stipulating that, “This appeal is directed against the Judgment dated 13th December, 2011 passed by the High Court of Judicature at Madras in Criminal Appeal No. 346 of 2011 whereby the Division Bench of the High Court dismissed the appeal preferred by the appellant herein and upheld his conviction and sentence passed by the Trial Court for the offence punishable under Section 302 read with Section 34, IPC.”

Briefly stated, para 2 then envisages that, “Prosecution case in brief is that Selvam @ Thangaraj (deceased), Karuppusamy (A1) and Sadayappan @ Ganesan (A2/appellant herein) were neighbouring agricultural land owners in the village of Kandavayal who used to go together for hunting of rabbits in the nearby forest area. Around 15 years prior to the incident, the deceased Thangaraj had negotiated to buy some agricultural land from A1 and paid him Rs. 30,000/- towards the sale value and took possession of the said land. However, despite, repeated requests, A1 had never come forward for registering the sale deed in favour of the deceased. Owing to this, A1 and the deceased developed animosity towards each other. A2 – appellant herein is the adjacent landowner who always supported A1 in avoiding registration of the sale deed. Despite animosity against the deceased, A1 and A2 kept on going to the forest for hunting along with him. On May 27, 2008 at about 11 p.m., both A1 and A2 went to the house of deceased and insisted that he accompany them to the fields/forest. Eventually, the deceased went with him hesitatingly. When the deceased did not return home till 4 am in the morning, his wife – Rajamal (PW1) sent one Palanisamy (PW2 – brother of the deceased) and Govindarajan (PW3 – nephew of the deceased) to search for her husband. PWs 2 and 3, while searching for the deceased, found his dead body near the fields with bleeding injuries. They immediately rushed to PW1 and informed her of the same.”

As it turned out, it is then pointed out in para 3 that, “On a complaint given by PW1, the Sub-Inspector of Police (PW14) at Sirumugai Police Station registered the crime under Section 302, IPC and Section 25 (1B)(a) of the Indian Arms Act against the accused. The Assistant Commissioner of Police (PW15 – Pandian) took up the investigation and after completing the formalities of holding inquest and preparing inquest report (Ext.P21), sent the body of the deceased for post-mortem. On August 29, 2008 the accused appeared before the Village Administrative Officer (VAO) and confessed to committing the crime. When the VAO produced the accused with their confessional statements, at their instance recovered material objects including Single Barrel Muzzle Loading Gun (MOI), torch light with battery, blood stained and normal soil, torn clothes, lungi, towel etc. and sent them for chemical analysis. Subsequently, the learned Judicial Magistrate committed the case to the Principal District and Sessions Judge, Coimbatore who framed charges against the accused-appellant under Section 302 read with Section 34, IPC. The appellant denied the charges and claimed to be tried.”

Furthermore, it is then pointed out in para 4 that, “After an elaborate trial, the Trial Judge opined that the circumstantial evidence correlates with the accused and clearly proves that owing to prior enmity, A1 and A2, in furtherance of their common intention, committed the murder of the deceased with a gun shot from the unauthorized gun owned by accused-appellant. The Trial Court thereby found both the accused guilty and accordingly convicted the appellant herein under Section 302 read with Section 34, IPC and sentenced him to life imprisonment and also to pay a fine of Rs. 10,000 vide order dated 18.05.2011. Both the accused preferred an appeal before the High Court which was dismissed vide order dated December 13, 2011. Aggrieved thereby, both the accused preferred separate appeals before this Court. It is pertinent to state that the appeal of the A1 stood abated owing to his death during its pendency. Thus, we are now concerned only with the appeal preferred by A2.”

On one hand, it is pointed out in para 5 that, “Learned counsel appearing on behalf of the appellant contended that the courts below have incorrectly relied on the testimonies of interested witnesses who are relatives of the deceased. He submitted that the chain of circumstances connecting the appellant to the crime is incomplete. He further submitted that the courts below erred in holding that the appellant had motive to commit the alleged crime and shared a common intention with A1, inasmuch as the land dispute between A1 and the victim had already been settled amicably in the panchayat. He argued that A1, A2 and the victim were on friendly terms thereafter which is reinforced from the fact that they used to go to the forest for hunting together.”

On the other hand, it is then pointed out in para 6 that, “Learned counsel appearing for the State, however, supported the judgment of the High Court and submitted that there was no occasion for this Court to interfere with it.”

Needless to say, the Bench while observing in para 7 that, “We have heard the learned counsels for the parties and meticulously perused the material on record” then goes on to add in para 8 that, “Admittedly, the deceased A1 and A2 (appellant herein) were neighbouring agricultural landowners and used to go for hunting together. Further, there is no denial of the fact that around 15 years prior to the date of incident, the deceased and A1 had entered into a deal through which land was sold to the deceased, but the same was never registered. Additionally, record shows that A2 – the appellant herein, whose land was adjacent to that of A1, always supported A1 in the matter of delaying the registration of land in favour of the deceased. This is the factual matrix of enmity between the accused and the deceased which serves as motive for the offence. Despite this, the deceased kept on going to the forest for hunting with the accused persons. These facts are abundantly clear from the testimonies of PWs1, 2, 3, 4 and 6.”

Going forward, it is then observed in para 9 that, “Further, PW1 – wife of the deceased (complainant), who is the witness to the last seen, supported the prosecution version and deposed that two days prior to the incident she had pressed A1 to register the land, but he kept quiet and went away. She further stated that owing to this pre-existing enmity, the accused persons were motivated to eliminate her husband. Thus, on the fateful night, the accused had come armed to take the deceased along with them to the forest, a request which was acceded to by the deceased hesitatingly.”

To be sure, it is then envisaged in para 10 that, “With respect to the deposition of PWs 1, 2, 3, 4 and 6 which firmly establish the prosecution version, the learned counsel for the appellant contended that they are inter-related and interested witnesses, thus making their evidence unreliable.”

What’s more, it is then held in para 11 that, “Criminal law jurisprudence makes a clear distinction between a related and interested witness. A witness cannot be said to be an “interested” witness merely by virtue of being a relative of the victim. The witness may be called “interested” only when he or she derives some benefit from the result of a litigation in the decree in a civil case, or in seeing an accused person punished. [See: Sudhakar v. State, (2018) 5 SCC 435].”

Interestingly enough, it is then also clarified in para 12 that, “In the case at hand, witnesses may be related but they cannot be labelled as interested witnesses. A scrutiny of their testimonies which has stood the rigour of cross-examination corroborates the prosecution story.”

Truth be told, it is then revealed in para 13 that, “PW2 – brother of the deceased and PW3 – nephew of the deceased, clearly deposed that when they came to know from PW1 that the deceased did not turn up after leaving home at 11 pm on the previous night, they went in search of him and found his dead body in ‘Vaalaithope’. Similarly, PW4 – another nephew of the deceased has also deposed that upon coming to know from his brother – PW3 about the death of his uncle, he along with his mother went to ‘Vaalaithope’ where they found the dead body of the deceased. PW6 – another nephew of the deceased also deposed in his statement that when he went to Sirumugai Police Station he saw the accused persons there and witnessed their confessional statements recorded by the police. He also stated that he accompanied the police with the accused to the place of occurrence where normal and blood stained mud was collected and that he signed the observation Mahazar (Ex. P7).”

What cannot be lost on us is that it is then held very clearly and convincingly in para 14 that, “Going by the corroborative statements of these witnesses, it is discernible that though they are related to each other and to the deceased as well, their evidence cannot be discarded by simply labeling them as “interested” witnesses. After thoroughly scrutinizing their evidence, we do not find any direct or indirect interest of these witnesses to get the accused punished by falsely implicating him so as to meet out any vested interest. We are, therefore, of the considered view that the evidences of PWs 1, 2, 3, 4 and 6 are quite reliable and we see no reason to disbelieve them.”

On a different note, it is then pointed out in para 15 that, “With respect to forensic evidence, Dr. T. Jeya Singh (PW12), who conducted post mortem on the body of the deceased, found prominent injuries on the body of the deceased and opined that the deceased died due to shock and haemorrhage from multiple injuries (perforating and penetrating) which were possible due to piercing of pellets. The post mortem report and chemical analysis report confirms the gun shot and proves that the gun powder discovered on the body and clothes of the deceased was the residue of the gun (MO1). The ownership of this gun (MO1), which was discovered on the basis of his extra-judicial confession, has not been disputed by the appellant in his Section 313 Cr.P.C. statement.”

Not stopping here, it is then added in para 16 that, “The counsel appearing on behalf of the appellant agitated the genuineness and admissibility of the extrajudicial confession of the accused on the basis of which recovery of gun (MO1) was made. He questioned the same on the basis of absence of the examination of the VAO who allegedly recorded the same. It is to be noted that the record indicates that the VAO could not be examined due to his death before the commencement of the trial. However, it is clear that the said confessional statement, was sent by the VAO to the Inspector of Police along with a covering letter (Ext. P14). Moreover, the Village Assistant – PW 11, even though turned hostile, had specifically deposed that the said extrajudicial confession was recorded by the VAO.”

No doubt, it would be pertinent to also mention here that it is then held in para 17 that, “Though the prosecution case is premised on circumstantial evidence in the absence of any eye witness, the depositions of prosecution witnesses which have stood the rigour of cross-examination clearly support the prosecution version and establishes enmity between the accused and the deceased. This fact supported by PW1’s last seen evidence, her prompt complaint to the police and the forensic evidence which correlates the recovered weapon to the physical injuries on the body of the deceased proves the prosecution case beyond any reasonable doubt independent of the extrajudicial confession.”

Finally, it is held in the last para 18 that, “Thus, the High Court was justified in upholding the conviction of the appellant and did not commit any illegality in passing the impugned judgment which merits interference. Therefore, the appeal being devoid of merit stands dismissed.”

In the ultimate analysis, it has to be said with certitude that it is a very well balanced and quite reasonable judgment which gives adequate and justified reasons in its findings. It was rightly held by the Bench of Apex Court that witness can be called interested only when he/she derives some benefit seeing an accused person punished. It is rightly held that just because the witnesses are related to each other or to the deceased, they cannot on this ground alone be termed as “interested witnesses”! This must be always kept in mind by all the Judges of all Courts while deciding on such cases! There can be no denying or disputing it!

Sanjeev Sirohi

When Can A ‘Cheque Bounce’ Complaint Against Director Of Company Be Quashed?

“The law requires that the complaint must contain a specific averment that the Director was in charge of, and responsible for, the conduct of the company’s business at the time when the offence was committed.” The Supreme Court has reiterated that, a ‘cheque bounce’ complaint against a Company and its Director, must contain a specific averment that the Director was in charge of, and responsible for, the conduct of the company’s business at the time when the offence under Section 138/141 of Negotiable Instruments Act was committed.

A three judge bench comprising of Justice NV Ramana, Justice Mohan M. Shantanagoudar and Justice Indira Banerjee were considering an appeal against an order of the High Court of Telangana and the State of Andhra Pradesh which quashed a cheque complaint against directors of the Company, accused of dishonouring the cheque. It observed that High court could quash the complaint only if some unimpeachable evidence has been brought on record which leads to the conclusion that the Director could never have been in charge of and responsible for the conduct of the business of the company at the relevant time.

The High Court had quashed a complaint filed by one AR Radha Krishna against the directors of the company. The complaint was filed after six cheques for Rs.25,00,000 each and one cheque for Rs.30,00,000 were drawn on different dates by the authorised signatory, i.e., M.D. of M/s Dhruti Infra Projects Limited, were returned dishonored.

In the appeal filed by the complainant, the Apex court bench observed that the High Court was not justified in allowing the quashing petitions by invoking its power under S.482, Cr.P.C. “In a case pertaining to an offence under S. 138 and S. 141 of the Act, the law requires that the complaint must contain a specific averment that the Director was in charge of, and responsible for, the conduct of the company’s business at the time when the offence was committed. The High Court, in deciding a quashing petition under S. 482, Cr.P.C., must consider whether the averment made in the complaint is sufficient or if some unimpeachable evidence has been brought on record which leads to the conclusion that the Director could never have been in charge of and responsible for the conduct of the business of the company at the relevant time.

” The court further observed that, while the role of a Director in a company is ultimately a question of fact, and no fixed formula can be fixed for the same, the High Court must exercise its power under S. 482, Cr.P.C. only when it is convinced, from the material on record, that allowing the proceedings to continue would be an abuse of process of the Court. Allowing the appeal, the court said: “A perusal of the record in the present case indicates that the appellant has specifically averred in his complaint that the respondent nos. 1 and 2 were actively participating in the day-today affairs of the accused no.1 – company. Further, the accused nos. 2 to 4 (including the respondent nos. 1 and 2 herein) are alleged to be from the same family and running the accused no.1 – company together. The complaint also specificies that all the accused, in active connivance, mischievously and intentionally issued the cheques in favor of the appellant and later issued instructions to the Bank to “Stop Payment”. No evidence of unimpeachable quality has been brought on record by the respondent nos. 1 and 2 to indicate that allowing the proceedings to continue would be an abuse of process of the court.”