A director who has resigned prior to the issuance of a cheque cannot be held vicariously liable for its dishonor under Section 138 of the N.I. Act.

ORDER :

1. By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicant-original accused no.3 seeks to invoke the inherent powers of this Court praying for quashing of the proceedings of the Criminal Case No.2986 of 2017 pending before the learned Chief Judicial Magistrate, Ahmedabad Rural for the offence punishable under Sections-138 of N.I. Act.

2. The case of the complainant can be summarized as under:-

2.1 It is the specific case of the complainant that the complainant is the finance company registered as per the rules and regulations of the RBI as well as Government and engaged in the activities of providing finance to the needy persons. The accused persons have approached the office of the complainant and demanded loan of Rs.23,73,500/- and at that relevant point of time, the accused persons signed the agreement and cheque was issued by the accused persons in favour of the complainant and also, given oral assurance that as and when the cheque was deposited in the bank, in that event, the cheque would be hounoured. It is the case of the complainant that when the cheque bearing No.974621 of Canara Bank was presented in the bank, at that time, the same was returned with an endorsement of ‘insufficient balance’. The said returned memo alongwith cheque was received on 16.02.2017. Therefore, the complainant issued a notice on 28.02.2017 through his advocate to the accused, which was sent through R.P.A.D. and the same was duly served to the accused persons. Despite the serving of demand notice, the accused persons neither reply to the notice nor pay the amount of loan. Therefore, the complainant constrained to register the complaint against the accused persons.

2.2 The complainant has filed complaint against all the accused persons alongwith all relevant documents and materials available with him. After considering and appreciating all those documents and materials available on record, the court concerned thought it fit that prima-facie case is made out against accused persons and passed an order for issuance of process under Section-204 of Cr.P.C. against the accused persons. As soon as order of issuance of process served to the accused persons, the applicant-accused no.3 has approached this court. Hence, the present application.

3. Heard learned advocate, Mr. Aditya Gupta for the applicant-accused no.3; learned APP Mr. Manan Maheta for respondent no.2 – State of Gujarat and Ms. Helly Panchal, learned advocate, who appears on behalf of Mr. Kalpesh Patel, learned advocate for respondent no.1- complainant.

4. Mr. Aditya Gupta, learned advocate for the applicant submits that it is well within the knowledge of one and all that at the time of registration of private complaint, more particularly, for offence under Section-138 of N.I. Act, the complainant has to scrupulously follow statutory provision mentioned in the N.I. Act. He further submits that admittedly, as per the case of the prosecution, the accused persons have issued cheque in favour of complainant in the year 2017 i.e. on 13.02.2017 and the said cheque was deposited by the complainant in the bank, which was returned with an endorsement that ‘insufficient fund’. He further submits that the accused no.1 is the Private Limited Company, whereas, the accused nos.2 to 4 are the Directors of the Company. He further submits that the applicant herein is one of the Directors of the Company and she is not the signatory of the said cheque. He further submits that the husband of the applicant is also one of the Director of the Com