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2008(1) Bankmann 535 (Bom.)
BOMBAY HIGH COURT
B.H. Marlapalle, J.
Prafulla Maheshwari and Ors. —Petitioners
versus
State of Maharashtra and Anr. —Respondents
Crl. W.P. No. 2110 of 2006
Decided on 1-11-2007
For the Petitioners:Mr. Anand Kumar and Mr. D.A. Jahangir, Advocates.
For the Respondent No. 2:Mr. Tanvir Shaikh, Advocate.
For the State: Mrs. S.V. Gajare, A.P.P.
IMPORTANT POINT
If an accused is a full time director of any accused-company, it would be a matter of evidence to decide the issue as to whether he was in-charge of and responsible for the conduct of the business of such a company.
Headnote:Negotiable Instruments Act, 1881—Section 138/141—Dishonour of cheque issued by company—Prosecution of company and its directors accused Nos. 2 to 7—Quashing petition on plea that petitioner director had resigned from Board of Directors prior to issue of cheque and that petitioner was not in-charge of and responsible to company for business affairs of company—Form No. 32 did not indicate that it was received by Registrar under Companies Act at any time—Contention required to be examined only during trial—When petitioner was a full time director of accused company, it would be matter of evidence to decide the issue whether he was in-charge of and responsible for conduct of business of company—Petition to quash proceedings was without merits. (Paras 5 & 6)
Result: Petition dismissed.
B.H. Marlapalle, J.—This petition filed under Article 227 of the Constitution read with Section 482 of Cr. P.C. prays for quashing the proceedings in C.C. No. 403/55 of 2005 filed by the present respondent No.2 under Section 138 of the Negotiable Instruments Act, 1881. The petition was admitted and by way of interim relief the proceedings in the said complaint pending before learned Metropolitan Magistrate, 21st Court at Bandra were stayed by an ex-parte order dated 3.10.2006. The respondent No.2, therefore, filed Criminal Application No.287 of 2007 praying for vacating the ex parte order of interim relief. By consent of the parties the petition has been taken up for final hearing today.
2. The complainant is a Government of India Enterprise and established under the Companies Act, 1956. Accused No.1-M/s. Enbee Infrastructure Ltd. is a limited Company incorporated under the Companies Act, 1956 and accused Nos. 2 to 9 were its Directors/ Additional Directors at the relevant time. The accused No.1 approached the complainant for a loan and on its representation an amount of Rs. 1170 lacs came to be sanctioned repayable within a period of ten years. Out of the said sanctioned loan amount a sum of Rs. 388.20 lacs was released to the accused No.1 and towards the repayment of dues for the quarter ending December, 2000 and March, 2001 the accused had issued post-dated cheques to the complainant-Company and one of such cheques was cheque No. 003415 dated 31.12.2000 for Rs. 14,55,750/-. The said cheque came to be dishonoured when submitted for encashment and, therefore, demand notice was issued on 24.5.2001 under registered post A.D. On receiving the said notice the accused did not take .any steps to pay the dishonoured cheque amount within 15 days and, therefore, the complaint under Section 138 of the Negotiable Instruments Act, 1881 came to be filed before the learned Metropolitan Magistrate at Bandra.
3. At the first stage the petitioners had approached this Court in Writ Petition No.3127 of 2005 for quashing the complaint and for permanent exemption of the accused from appearance before the Trial Court. But the said petition was disposed by this Court on 20.1.2006 by giving liberty to the petitioners to approach the Sessions Court by filing a criminal revision application. The petitioners consequently filed Criminal Revision Application under Stamp No.1951 of 2006 and the same was dismissed by the learned Addl. Sessions Judge on 28.3.2006.
4. In support of the prayer for quashing of the criminal complaint two grounds have been advanced before this Court viz. (a) the petitioner No.1 had resigned from the Company on 30.3.2000 and, therefore, he could not be impleaded as an accused as he was not a member of the Board when the dishonoured cheque was issued and (b) even otherwise the complaint filed by the present respondent No: 2 did not make out even a prima facie case against the present accused and the complaint did not state that each of them was responsible for and in-charge of the business of the accused No. 1—Company. A number of authorities have been relied upon by the learned Counsel for the petitioners in support of these grounds and more particularly the following:
(a) S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla & Anr.1;
(b) S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla & Anr.2;
(c) Sabitha Ramamurthy & Anr. v. R.B.S. Channabasavardhya3;
(d) Everest Advertising (P) Ltd. v. State, Govt. of N.C.T. of Delhi & Ors.4;
(e) N.K. Wahi v. Shekhar Singh & Ors.5;
(f) Saroj Kumar Poddar v. State (N.C. T. of Delhi) & Anr.6
5. Coming to the first ground that the petitioner No. 4 and accused No. 8 had resigned from the Board of the accused No. 1-Company with effect from 30.3.2000, it is pertinent to note that in reply to the demand notice under Section 138(b) of the Act, no such plea was taken. However, it appears that in Criminal Revision Application under Stamp No.1951 of 2006 a specific ground to the said effect was t
