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2011 DIGILAW 785 (GUJ)

Nishit Jain v. State of Gujarat

2011-11-21

M.R.SHAH

body2011
Judgment M.R. Shah, J.—The present Special Criminal Application under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure has been preferred by the petitioner-original Accused No. 3 to quash and set aside the impugned Complaint, being Criminal Case No. 882/2009 pending in the Court of learned Metropolitan Magistrate, Ahmedabad, lodged by Respondent No. 2-original complainant against the petitioner and others for the offence punishable under Section 138 read with Sections 141 and 142 of the Negotiable Instruments Act. 2. Respondent No. 2-original complainant has instituted Criminal Case No. 882/2009 pending in the Court of learned Metropolitan Magistrate, Ahmedabad against the petitioner (original Accused No. 3) and others for the offence punishable under Section 138 read with Sections 141 and 142 of the Negotiable Instruments Act for dishonour of cheque issued by original Accused No. 1-Company and signed by original Accused No. 2 as Director of Accused No. 1-Company. It appears that Respondent No. 2-Company is having its corporate office at Mumbai, however, its registered office is at Ahmedabad. It also appears that the disputed property in question, for which cheque was issued, is at Ahmedabad. However, the cheque in question was issued from the corporate office at Mumbai, which was given to Respondent No. 2-original complainant at Mumbai and it was deposited by Respondent No. 2-original complainant at Calcutta. It also appears that the notice under Section 138 of the Negotiable Instruments Act was issued from the corporate office of Respondent No. 2-original complainant at Mumbai and the same was served upon the accused persons at Calcutta. The learned Magistrate by order dated 16/01/2009 has been pleased to issue summons/process against the accused persons, inclusive of the petitioner, for the offence under Section 138 of the Negotiable Instruments Act. Hence, being aggrieved and dissatisfied with the aforesaid the petitioner-original Accused No. 3 has preferred the present Special Criminal Application under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure. 3. Hence, being aggrieved and dissatisfied with the aforesaid the petitioner-original Accused No. 3 has preferred the present Special Criminal Application under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure. 3. Shri S. Ganguly, learned advocate appearing with Shri Kunal P. Vaishnav, learned advocate appearing on behalf of the petitioner has requested to quash and set aside the impugned criminal Complaint/case against the petitioner and/or the order passed by the learned Magistrate issuing process against the petitioner in the said Complaint for the offence punishable under Section 138 of the Negotiable Instruments Act mainly on the following three grounds (1) that the petitioner was/is never the Director of original Accused No. 1-Company (2) that the Court at Ahmedabad has no territorial jurisdiction to entertain the impugned Complaint and (3) there are no specific averments or allegation made in the impugned Complaint specifically submitting the specific role attributed to the petitioner that he was in day to day affairs and management of Accused No. 1-Company and/or the role played by him. 4. With respect to his submission that the petitioner was/is not the Director of Accused No. 1-Company who issued the cheque at the relevant time when the cheque was issued/dishonoured, Shri Ganguly, learned advocate appearing on behalf of the petitioner has heavily relied upon the documents in the form of Form No. 20B submitted with the Registrar of Companies in which the name of the Directors of the Company are mentioned (Annexure -B- page Nos. 61 to 66) and, therefore, it is submitted that when the petitioner was not the Director of the Accused No. 1 Company, he cannot be fasten with the liability, more particularly, vicarious liability for the offence alleged to have been committed by Accused No. 1- Company under Section 141 of the Negotiable Instruments Act. 5. Shri Ganguly, learned advocate appearing on behalf of the petitioner has made number of submissions and cited number of judgments in support of his case with respect to his other two grounds. However, considering the fact stated hereinabove, the impugned criminal Complaint/Case against the petitioner deserves to be quashed and set aside qua the petitioner on the ground that the petitioner was not the Director at the relevant time when the cheque was issued and, therefore, this Court is not further considering the same and the said questions are kept open. 6. However, considering the fact stated hereinabove, the impugned criminal Complaint/Case against the petitioner deserves to be quashed and set aside qua the petitioner on the ground that the petitioner was not the Director at the relevant time when the cheque was issued and, therefore, this Court is not further considering the same and the said questions are kept open. 6. Shri A.M. Hawa, learned advocate appearing for M/s. Singhi & Co. for Respondent No. 2-original complainant is not in a position to dispute and/or is not disputing the documents produced by the petitioner (Annexure B page Nos. 61-65), which has been submitted by the petitioner in support of his contention/submission that the petitioner was not the Director of Accused No. 1-Company at the relevant time when the cheque was issued and/or dishonoured. However, has submitted that as in the visiting card of the petitioner name of Accused No. 1- Company is mentioned, it can be said that the petitioner was some what connected with Accused No. 1-Company and was in day to day management and affairs of the Accused No. 1-Company and, therefore, it is requested to dismiss the present petition. 7. Shri. L.B. Dabhi, learned APP appearing on behalf of the respondent-State has requested to pass an appropriate order considering the facts and circumstances of the case. 8. Heard the learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that the impugned Criminal Complaint/Case has been filed against the petitioner as Director of original Accused No. 1- Company alleging interalia that he was and is in day to day affairs and management of the Company and, therefore, he is to be held liable and/or vicariously liable under Section 141 of the Negotiable Instruments Act for the offence alleged to have been committed by the original Accused No. 1-Company. For making the petitioner vicariously liable under Section 141 of the Negotiable Instruments Act for the offence alleged to have been committed by the original Accused No. 1 Company, Respondent No. 2-original complainant is prima facie required to establish and prove that the petitioner is /was the Director of the Accused No. 1-Company and then and then only he can be held vicariously liable under Section 141 of the Negotiable Instruments Act for the offence alleged to have been committed by Accused No. 1-Company, who has issued the cheque. From the documents on record it appears that the petitioner was not the Director of the original Accused No. 1 Company, which issued the cheque, at the relevant time when the cheque was issued and/or dishonoured. The learned advocate appearing on behalf of the Respondent No. 2-original complainant has failed to establish and prove even prima facie that at the relevant time petitioner-original Accused No. 3 was the Director of original Accused No. 1-Company. He is also not in a position to dispute the documents produced at Annexure – B produced by the petitioner showing that at the relevant time the petitioner was not the Director of original Accused No. 1-Company and some other persons were the Directors. Merely because in the visiting card of the petitioner name of Accused No. 1-Company is mentioned, by that itself, it cannot be presumed that the petitioner was the Director of original Accused No. 1-Company. Under the circumstances, solely on the basis of the visiting card of the petitioner on which the name of Accused No. 1 Company is mentioned, the petitioner cannot be held vicariously liable under Section 141 of the Negotiable Instruments Act for the offence alleged to have been committed by original Accused No. 1, as Director of the said Company. Under the circumstances, on the aforesaid ground alone, the impugned Complaint/Criminal case against the petitioner deserves to be quashed and set aside. However, the same shall be without prejudice to the rights and contentions of the respective parties, more particularly of the original complainant against other accused persons. 9. In view of the above and for the reasons stated hereinabove, the present petition succeeds. The impugned Complaint, being Criminal Case No. 882/2009, pending in the Court of learned Metropolitan Magistrate, Ahmedabad, for the offence punishable under Section 138 read with Sections 141 and 142 of the Negotiable Instruments Act, is hereby quashed and set aside so far as the present petitioner-original Accused No. 3 is concerned and consequently the process issued by the learned Magistrate against the petitioner in the aforesaid Complaint is also quashed and set aside. However, the same shall be without prejudice to the rights and contentions of the respective parties in the impugned criminal complaint against the remaining accused persons and the trial against other accused persons shall be proceeded further by the learned Magistrate in accordance with law and on its own merits, without, in any way, being influenced by the present order. Rule is made absolute to the aforesaid extent. P P P P P