Proceeding against the accused who was not functioning as director at the time of issuance of cheque quashed.

M. KARPAGAVINAYAGAM, J.

Wipro Finance Limited, Chennai, filed two complaints against Fidelity Industries Ltd., Chennai, and its directors and authorised signatory arraying them as A-1 to A-6 for the offences under sections 138 and 141 of the Negotiable Instruments Act, 1881.

On receipt of summons petitioners Nos. 1 to 4 who are accused Nos. 2 to 5 have filed these two petitions under section 482 of the Criminal Procedure Code, praying to quash the entire proceedings in those two complaints, on the following grounds :

(i) V. G. Subbaraman, the second petitioner (A-3), retired on March 28, 1998, itself, as evidenced by Form No. 32 issued by the Registrar of Companies. Hence, he is not responsible for the issuance of the cheque on January 23, 1999, and the non-payment of the cheque amount after its dishonour and as such, the proceedings under section 138 of the Act are not valid in law in so far as he is concerned.

(ii) Though in the complaint, there is allegation against the petitioners that they are in charge of and responsible for the conduct of the business of the company (A-1) no overt act or specific allegation has been attributed to those petitioners. The cheque has been signed and issued only by the sixth accused, who is the authorised signatory. Therefore, other accused, namely, those petitioners, cannot be held responsible for the offence under section 138 of the Act.

On these two grounds, I heard the arguments of learned counsel on either side.

In regard to the first point in relation to the second petitioner V. G. Subbaraman (A-3), I find merit in the contention of learned counsel for the petitioners, inasmuch as Form No. 32 issued by the Registrar of Companies, which has been produced before this court and the same has not been disputed by counsel for the respondent/complainant, would reveal that the said second petitioner retired on March 28, 1998, itself and as such he did not function as a director either on the date when the cheques were issued (i.e.) on January 23, 1999, or when the cause of action arose for non-payment of the cheque amount on receipt of the statutory notice on July 10, 1999.Though the said document does not form part of the complaint and other records accompanied with the complaint, this can be taken into consideration by this court, since the contents of the said document, which is a public document, are not disputed by learned counsel for the respondent.

As held by the Supreme Court in Satish Mehra v. Delhi Administration 1996 3 Crimes 85 (SC) the court is within its powers to consider even materials which the accused may produce even before the commencement of trial for the purpose of deciding whether the accused could be discharged, when those documents are not in dispute.

In the present case, as noted above, the document Form No. 32 would reveal that the second petitioner was not the director who was in charge of and responsible for the affairs of the company during the relevant period and as such, the proceedings as against the second petitioner are liable to be quashed and accordingly, quashed.

In view of the number of decisions cited by learned counsel for the petitioners in respect of the second point, we shall deal with the said point in detail.

While dealing with the said point, it would be appropriate to refer to the allegations against the petitioners as contained in the complaint.

Paragraph 10 of the complaint would provide the relevant words :

"The said cheques were issued by the first accused herein, as per the instructions of accused Nos. 2 to 6 herein who are the managing director, directors and authorised signatory, in charge of the day-to-day affairs of the first accused-company. The said cheque was signed by the sixth accused in his capacity as the authorised signatory of the first accused-company herein."

According to counsel for the petitioner the mere words that" they are in charge of and responsible for the day-to-day affairs of the company"

would not be sufficient to ma