IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 4016 of 2018 ==========================================================

ANISH KASTURBHAI SHAH Versus STATE OF GUJARAT & ANR.

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Appearance:

RAHEEL S PATEL(7011) for the Applicant(s) No. 1 MR WASIM PATHAN FOR MR SATYAM Y CHHAYA(3242) for the Respondent(s) No. 2 MR SOHAM JOSHI, APP for the Respondent(s) No. 1 ==========================================================

CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI Date : 07/10/2025

ORAL ORDER

1. Heard learned advocate Mr.Raheel Patel for the petitioner, learned advocate Mr.Wasim Pathan for respondent no.2 and learned APP for respondent – State.

2. This petition is filed under section 482 of Cr.P.C., where the petitioner seeks quashment of issuance of process in Criminal Case No.88 of 2018 pending before learned Principal Judicial Magistrate, Manasa on the ground that the petitioner is non Executive Director of Anil Limited. He is not in charge of day to day affairs of Anil Limited and therefore, he cannot be prosecuted under section 141 of Negotiable Instrument Act for the complaint filed under section 138 of Negotiable Instrument Act.

3. Brief facts of the case are as under :-

3.1. Complainant has filed Criminal Case under section 138 of NI Act against Anil Limited registered under Companies Act against its Directors on the ground that to meet with financial obligation arise from commercial transaction between Jay Prabhu Trading Company and Anil Limited, cheque was given, which was dishonored. Statutory notice was issued but no payment for dishonor of cheque was mad within statutory period. Therefore, complaint under section 138 of NI Act was filed before the learned Trial Court. Learned Trial Court after verification tendered by complainant by way of affidavit was pleased to issue process against the accused arraigned in Criminal Case.

4. In aforesaid aspects, petitioner – Anish Shah who is arraigned as accused no.4 in Criminal Case has filed this petition on aforesaid grounds.

5. Learned advocate for the petitioner referred to judgment passed by various High Courts including judgment passed by this Court in favour of the petitioner who is non Executive Director whereby, Anil Limited has been arraigned as accused and petitioner is also arraigned as accused for his vicarious liability as Director of Anil Limited. It is submitted that various High Courts referred to settled legal position of law and held that non Executive Director being independent Director is not liable to be prosecuted under section 141 of NI Act and have quashed complaint against the petitioner. It is therefore, submitted by learned advocate for the petitioner that complaint against the petitioner may be quashed.

6. Learned advocate Mr.Pathan for respondent no.2 in given facts and circumstances of the case submitted to pass necessary order in accordance with law.

7. Learned APP Mr.Joshi adopted the argument of learned advocate Mr.Pathan for respondent no.2.

8. Having heard learned advocates for both sides, this Court refers to document annexed with the petition at Annexure B which indicates that the petitioner has been appointed as non Executive Director and independent Director. Same is also registered in Form No.DIR-11. Date of appointment is 29.12.1998 and his designation is Director in category of independent.

9. This Court in Meghdoot Hiralal Patel v/s. State of Gujarat and Anr. [Criminal Misc. Application No.6387 of 2018] dated 09.04.2025 after referring to judgment in the case of National Small Industries Corporation Ltd. v/s. Harmeet Singh Paintal and Anr. [(2010) 3 SCC 330] and in the case of Susela Padmavathy Amma v/s. M/s. Bharti Airtel Ltd. [2024 (3) SCR 647] in para 10 held as under :-

“10. Coming back to the case on hand, it is noticed that the complainant has stated that accused No.2 is in-charge and responsible for day-to-day affairs of the accused – company. He is the sign