Exercise caution in using the power under section 482 Cr. P.C. to avoid stalling legitimate prosecutions.

M.L. MEHTA, J. (Oral)

1. This petition under section 482 Cr. P.C. seeks quashing of summoning order dated 03.03.2012 of ACMM, Saket District Courts, Delhi, in FIR No. 07 of 2010 P.S. Fatehpur Beri registered under section 420/406 read with section 120-B IPC.

2. The allegations in brief against the petitioner are that he was one of the Directors of M/s. Dimensions Investment and Securities Ltd. (hereinafter referred to as „DIS Ltd.? for short). A complaint was made against the company and its Directors including the petitioner by one Vijender Kumar, authorized representative of M/s. Regal Trade Link Pvt. Ltd. Since no action was taken by the police, complaint was made to the ACMM and on his directions; the aforesaid FIR was registered against the DIS Ltd and its Directors including the petitioner. The main allegations were that the DIS Ltd through its Directors had taken loan of Rs.20.00 crores vide agreement dated 10th December 2007 and as agreed they gave four post dated Cheques of Rs. 5.00 crore each with the assurance that all the cheques on presentation would be honoured. Later those cheques were replaced by the DIS Ltd. by another four post dated cheques on 28.12.2008 on the assurances that the same on presentation would be honoured. Three out of those cheques got dishonoured on account of insufficient funds and the one due to difference in signatures. When the complainant contacted the accused persons, they not only refused to listen, but they refused to talk to the complainant on the issue. It is alleged that with regard to the three cheques which got dishonoured on account of insufficient funds, complaints under section 138 N.I. Act were filed which are pending against the accused. It is alleged that the cheque of Rs. 5.00 crore which was dishonoured on account of difference in signatures was given with dishonest intention from the beginning by the accused in conspiracy with each other. It was also alleged that all the Directors including the petitioner were incharge and responsible for the conduct of affairs of the company DIS Ltd. and they actively participated in the transaction. It is also alleged that the accused persons have misappropriated the amount and have committed criminal breach of trust.

3. The police filed closure report before the Court to which objections were filed by the complainant. The ACMM vide the impugned order found the objections tenable and turned down the closure report and took cognizance against the accused persons and issued them summons. It is this order of the ACMM that has been assailed by the petitioner.

4. The main ground that has been raised by the petitioner is that he was not the Director of the DIS Ltd. on the day of issued of cheque dated 29.03.2009. It was submitted that he had resigned from the Directorship of this company on 27th March 2009 and his resignation was also accepted by the company on the same day. It is also submitted that intimation in this regard might have been given by the company in form 32 to the Registrar of the Companies (ROC).

5. I have heard the learned counsel for the petitioner and perused the record.

6. The petitioner was appointed as Director of this company on 27.01.2008 and allegedly had resigned on 27th March, 2009 by submitting his resignation letter. The cheque in question was dated 29th March 2009. However, it is seen that the allegations are that these post dated cheques were given as replacement of the four cheques given earlier by the accused company. The earlier cheques were of the dates of December 2008 and February 2009. It would be seen that at the relevant time of issue of previous four cheques and the subsequent four cheques including the cheque in question, the petitioner was a Director of the company. Though the cheque is dated 29th March 2009, but the same was given on 28th December 2008. The plea that he had resigned on 27.03.2009 i.e. two days before the date of this cheques is apparently unbelievable. In any case, since the