JUDGMENT :

Bharati Dangre, J.

The Applicant, who was a Director of Landmark Real Estate Developers Limited, a Company incorporated under the provisions of the Companies Act is before this Court assailing the action of issuance of process against him and subsequent order passed by the Appellate Court which upholds the order passed by Metropolitan Magistrate.

2. The Landmark Real Estate Developers Limited entered into a Memorandum of Understanding for Full and Final Settlement of Accounts with one Mr. Sayed Ghulam Abbas Rizvi and two others wherein, it was agreed that the amount would be paid to the Fourth, Fifth and Sixth Parts of the Memorandum of Understanding in pursuance of the quashing proceedings that they have filed before the High Court seeking quashment of C.R.No.20 of 2016. A schedule of payment was set out and the Memorandum of Understanding also makes a mention to four post dated cheques and the issue in the present Criminal Application revolves around the third cheque bearing No.034405 dated 31/01/2017 issued for an amount of Rs.2,94,805/-.

3. The Complainant, being aggrieved by the dishonour of the cheque, on 13/02/2017 addressed a notice on three addressees viz. one Mr. Vali Mohamed Ismail Merchant, Director of Landmark Real Estate Developers Limited at his residence at 401, Khaiber Apartments,83, Prof. Almeidia Road, Bandra (West), Mumbai. The second noticee is again Mr. Vali Mohamed Ismail Merchant, Director of Landmark Real Estate Developers Limited and the address is given as Digital Planet,181, Hill Road, Bandra (West), Mumbai - 400050. The third noticee is the Applicant Mr. Shehzad Vali Mohamed Ismail Merchant, Director of the Landmark Real Estate Developers Limited and the notice is addressed at his residence located at Andheri, Mumbai. Since there was no compliance of the said notice, complaint under Section 138 of the Negotiable Instruments Act, 1881 ("NI Act") came to be instituted which resulted into issuance of process by the 70th Court of Metropolitan Magistrate, Mazgaon, Mumbai and the process was issued against the Applicant who was arraigned as Accused No.3 in the said complaint for the offence punishable under Sections 138 and 142 of the NI Act.

4. The Applicant is aggrieved by the issuance of the process and the learned counsel Mr. Desai would submit that the unembellished and elemental facts have not been taken into consideration by learned Magistrate while issuing the process. He would submit that on 28/12/2016, the Applicant has tendered his resignation from the post of Director of the Company through a communication addressed to the Board of Directors of Landmark Real Estate Developers Limited. Pursuant to this, a Resolution was passed by the Board on the same day i.e. on 28/12/2016, thereby resolving that the resignation of the Applicant from the Directorship of the Company is accepted from 28/12/2016. The factum of resignation is also depicted in Form DIR-12 maintained by the Ministry of Corporate Affairs and the said document confirms that the Applicant, with effect from 28/12/2016, is not associated with Landmark Real Estate Developers Limited.

5. Another aspect which the learned counsel for the Applicant has pressed into service is that the notice which was addressed by the Complainant was not addressed to the Company which is the drawer of the cheque dated 31/01/2017 issued to the Complainant for discharge of the liability of an amount of Rs.2,94,805/-. He would submit that the drawer of the said cheque is the 'Landmark Real Estate Developers Limited'. Relying upon clause (b) of Section 138 of the NI Act, Mr. Desai would submit that since the notice was not addressed to the drawer, the procedure contemplated under Section 138 of the NI Act is not complied with and resultantly, no liability under the said section can be foisted on its Directors as it is non compliant of clause (b) of Section 138 of the NI Act.

6. Learned counsel for the Respondent No.1 would invite my attention to the Memorand