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2010 DIGILAW 576 (GUJ)

Chintan Ishwarbhai Patel v. State of Gujarat

2010-12-03

M.R.SHAH

body2010
ORDER : M.R. Shah, J. Rule. Mr.K.P.Rawal, learned Additional Public Prosecutor waives service of notice of Rule on behalf of respondent No.1 - State and Mr.G.D.Bhatt, learned advocate waives service of notice of Rule on behalf of respondent No.2 - original complainant. 2. In the facts and circumstances of the case and with the consent of the learned advocates appearing on behalf of the respective parties, the present application is taken up for final hearing today. 3. The present application under Section 482 of the Code of Criminal Procedure, has been preferred by the applicants herein - original accused Nos.3 to 5 to quash and set aside the impugned complaint being Criminal Case No.325 of 2010 pending before the learned Judicial Magistrate First Class, Anjar, Kachchh so far as the present applicants - original accused Nos.3 to 5 are concerned. 4. Mr.Rupera, learned advocate appearing on behalf of the applicants herein - original accused Nos.3 to 5 has vehemently submitted that admittedly the cheque, which came to be dis-honoured and for which, the impugned complaint for the offence punishable under Section 138 of the Negotiable Instruments Act has been preferred, was issued on 15/12/2009 and so far as applicant Nos.1 & 2 - original accused Nos.3 & 4 are concerned, they had already resigned as Directors of the Company in the year 2002. Therefore, it is submitted that when cheque in question was issued, they were not the Directors of the Company, they cannot be held responsible for any affairs of the Company as well as dishonour of the cheque, which was issued by the Company in the year 2009. 5. Mr.Rupera, learned advocate appearing on behalf of the applicants herein has submitted that so far as applicant No.3 - original accused No.5 is concerned, he had resigned in the year 2008 and even no statutory Notice as required under Section 138 of the Negotiable Instruments Act was served upon applicant No.3 - original accused No.5 and, therefore, in absence of any statutory notice as required under Section 138 of the Negotiable Instruments Act, the aforesaid complaint/ criminal case against applicant No.3 for the offence punishable under Section 138 of the Negotiable Instruments Act, is not maintainable. It is submitted that even authorised Officer of the Company informed the complainant and disclosed the names of the Directors of the Company (in which applicant Nos.1 & 2 do not figure), still respondent No.2 has filed complaint against applicant Nos.1 & 2. It is submitted that applicant Nos.1 & 2 have already resigned as Directors of the Company in the year 2002 and cheque was issued in the year 2009 and complaint came to be filed in the year 2010, the impugned complaint against the applicant Nos.1 & 2 deserves to be quashed and set aside. 6. Mr.G.D.Bhatt, learned advocate appearing on behalf of the respondent No.2 - original complainant is not in a position to dispute the statements made by learned advocate appearing on behalf of the applicants, as recorded herein-above and/or he is not in a position to show any contrary evidence that applicant Nos.1 and 2 were Directors of the Company at the time when cheque in question was issued. He is not in position to dispute that no statutory notice as required under Section 138 of the Negotiable Instruments Act, was served upon applicant No.3. 7. Mr.K.P.Rawal, learned Additional Public Prosecutor appearing on behalf of respondent No.1 - State has requested to pass an appropriate order considering the facts and circumstances of the case. 8. Having heard the learned advocates appearing on behalf of the respective parties and considering the impugned complaint, it appears that the aforesaid complaint has been filed against the applicants for the offence punishable under Section 138 of the Negotiable Instruments Act, for dishonour of the cheque dated 15/12/2009. It appears from the documents produced on record that so far as applicant Nos.1 & 2- Chintan Ishwarbhai Patel and Bhavesh Dashrathbhai Patel are concerned, they had already resigned as Directors of the Company as far as back in the year 2002 and the same was also recorded in the Register of the Registrar of Companies, Ahmedabad that applicant Nos.1 & 2 have resigned as Directors of the Company on 10/10/2002. 9. So far as applicant No.3 is concerned, though in the communication dated 04/04/2004 issued by authorised signatory of the Company, it is mentioned that still he is Directors of the Company. 9. So far as applicant No.3 is concerned, though in the communication dated 04/04/2004 issued by authorised signatory of the Company, it is mentioned that still he is Directors of the Company. However so far as applicant No.3 is concerned, admittedly, no statutory notice as required under Section 138 of the Negotiable Instruments Act has been issued and served upon applicant No.3. In Para-15 of the Criminal Case, it is specifically mentioned that no notice has been issued to applicant No.3 - original accused No.5, his name was disclosed through a communication sent by accused No.1, after serving the notices. Be that as it may. Fact remains that no statutory notice as required under Section 138 of the Negotiable Instruments Act has been issued and served upon applicant No.3. Under the circumstances, in absence of serving any statutory notice, as required under Section 138 of the Negotiable Instruments Act, the complaint against applicant No.3 for the offence punishable under Section 138 of the Negotiable Instruments Act, is not maintainable and cannot be sustained and the same deserves to be quashed and set aside. 10. In view of the above and for the reasons stated herein-above, the application succeeds and proceeding of Criminal Case No.325 of 2010 pending in the Court of learned Judicial Magistrate First Class, Anjar-Kachchh qua applicants herein - original accused Nos.3 to 5 are hereby terminated and quashed and set aside. Rule is made absolute accordingly. Application allowed.