Back
2017 Supreme(Guj) 797
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B. Pardiwala, J.
Joginder Singh Juneja and Ors. - Appellants
Vs.
State of Gujarat and Ors. - Respondents
Criminal Misc. Application (For Quashing and Set Aside FIR/Order) No. 30195 of 2016 and Criminal Misc. Application No. 30197 of 2016
Decided On : 19-04-2017
For the Appellants : I.H. Syed, Aftabhusen Ansari
For the Respondents: Shruti Pathak
Headnote:
Negotiable Instruments Act. -Sections 138,141 -Code of Criminal Procedure, 1973 -Section 482 - Issues raised in both the captioned applications are the same and the parties are also the same, those were heard analogously and are being disposed of by this common judgment and order. For the same of convenience, the Criminal Miscellaneous Application No. 30195 of 2016 is treated as the lead matter. this application, the applicants - original accused Nos. 4 and 5 seek to invoke the inherent powers of this Court, praying for quashing of the proceedings of the Criminal Case No. 316 of 2016 pending in the Court of the learned Additional Chief Metropolitan Magistrate, Court No. 36 arising from a complaint filed Act. connected application is in connection with the Criminal Case No. 315 of 2016 pending before the very same Court i.e. the Additional Chief Metropolitan Magistrate, Court No. 36 at Ahmedabad arising from a complaint lodged. applicants before me have been arraigned as accused in their capacity as the Directors of the accused No. 1 - company namely, Elder Pharmaceuticals Limited. They are sought to be prosecuted for the offence punishable by imposing vicarious liability under Section 141 of the Negotiable Instruments Act. The complaint filed by the respondent No. 2 reads as underThat the Accused No. 2 is the Managing Director of the Accused No. 1, the Accused Nos. 4 to 6 are the Directors of the Accused No. 1, the Accused No. 7 is the Secretary of the Accused No. 1. The said persons were in charge of and were responsible to the Accused No. 1 for the conduct of the business of the Accused No. 1, as well as the Accused No. 1, at the time of commission of the present offence under section 138 of the Act That the Complainant had upon the request of the Accused No. 1 deposited Rs. 3,00,000/- (Rupees three lakhs only) with the Accused No. 1 in. Accused No. 1 promised to repay said deposit with interest, being a total sum of Rs. 3,06,809/-. In order to secure the said payment by the Accused No. 1 to the Complainant, the Accused No. 1 executed promissory note in favour of the Complainant having due, promising to pay Rs. 3,06,809 to the Complainant. That the said arrangement entered into between the Complainant and the Accused No. 1 is evidenced by letter issued by the Accused No. 1 to the Complainant and termed as Promissory Note Discounting Facility therein. Hereto annexed and marked as Annexure A is a copy of the said letter issued by the Accused No. 1 to the Complainant. Hereto annexed and marked as Annexure B is a copy of the promissory note executed by the Accused No. 1 in favour of the Complainant having due -Held I do not propose to close the doors of the applicants at this stage. It will be still open for the applicants to adduce sufficient and necessary materials in the course of the trial to establish that they, being non-executive and independent Directors, had no role to play in the day-to-day affairs and management of the company. The Trial Court shall consider such evidence that may be led by the parties in the course of the trial and then take an appropriate decision before fastening vicarious liability under Section 141 of the Negotiable Instruments Act. While deciding or fixing the vicarious liability of the applicants herein, the Trial Court shall not be influenced by any of the observations made by this Court in this judgment, except the position of law. In view of the above, both the applications fail and are hereby rejected. Rule is discharged. The ad-interim order earlier granted stands vacated -Application Dismissed.
J.B. Pardiwala, J.
1. Since the issues raised in both the captioned applications are the same and the parties are also the same, those were heard analogously and are being disposed of by this common judgment and order.
2. For the same of convenience, the Criminal Miscellaneous Application No. 30195 of 2016 is treated as the lead matter.
3. By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicants - original accused Nos. 4 and 5 seek to invoke the inherent powers of this Court, praying for quashing of the proceedings of the Criminal Case No. 316 of 2016 pending in the Court of the learned Additional Chief Metropolitan Magistrate, Court No. 36 at Ahmedabad arising from a complaint filed under Section 138 of the Negotiable Instruments Act.
4. The connected application is in connection with the Criminal Case No. 315 of 2016 pending before the very same Court i.e. the Additional Chief Metropolitan Magistrate, Court No. 36 at Ahmedabad arising from a complaint lodged under Section 138 of the Negotiable Instruments Act.
5. The applicants before me have been arraigned as accused in their capacity as the Directors of the accused No. 1 - company namely, 'Elder Pharmaceuticals Limited'. They are sought to be prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act, by imposing vicarious liability under Section 141 of the Negotiable Instruments Act. The complaint filed by the respondent No. 2 reads as under:
"3. That the Accused No. 2 is the Managing Director of the Accused No. 1, the Accused Nos. 4 to 6 are the Directors of the Accused No. 1, the Accused No. 7 is the Secretary of the Accused No. 1. The said persons were in charge of and were responsible to the Accused No. 1 for the conduct of the business of the Accused No. 1, as well as the Accused No. 1, at the time of commission of the present offence under section 138 of the Act (defined hereinbelow).
4. That the Complainant had upon the request of the Accused No. 1 deposited Rs. 3,00,000/- (Rupees three lakhs only) with the Accused No. 1 in and around 18.07.2013. The Accused No. 1 promised to repay said deposit with interest, being a total sum of Rs. 3,06,809/-. In order to secure the said payment by the Accused No. 1 to the Complainant, the Accused No. 1 executed promissory note in favour of the Complainant having due date 16.09.2013, promising to pay Rs. 3,06,809 to the Complainant. That the said arrangement entered into between the Complainant and the Accused No. 1 is evidenced by letter dt. 18.07.2013 issued by the Accused No. 1 to the Complainant and termed as 'Promissory Note Discounting Facility' therein. Hereto annexed and marked as Annexure A is a copy of the said letter dt. 18.07.2013 issued by the Accused No. 1 to the Complainant. Hereto annexed and marked as Annexure B is a copy of the promissory note executed by the Accused No. 1 in favour of the Complainant having due date 16.09.2013.
5. That the Accused No. 1 in order to make payment as promised under the said promissory note issued cheques to the Complainant from time to time.
6. However, the Accused No. 1 knowing that those cheques would bounce, at all times requested the Complainant not to deposit the same during its validity period, and instead, to make good its commitment under the said promissory note, would replace the older cheque with new one.
7. That the Accused No. 1, to make payment under the said promissory note issued cheque drawn on ICICI bank, Nariman Point, Mumbai bearing No. 030328 dated 31.03.2015 for Rs. 3,06,809 (Rupees three lakhs six thousand eight hundred and nine only) in favour of the Complainant enclosed with letter dt. 11.09.2014. The Accused No. 1 simultaneously sought return of all cheques issued previously by the Accused No. 1 to the Complainant to make the payment under the said promissory note. Hereto annexed and marked as Annexure C is a copy of the said cheque drawn on ICICI bank, Nariman Point, Mumbai bearing No. 0
