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2011 DIGILAW 848 (GUJ)

Minar International Ltd. v. State of Gujarat

2011-12-20

M.R.SHAH

body2011
ORDER : 1. The present Criminal Misc. Application under Section 482 of the Code of Criminal Procedure has been preferred by the applicants herein-original accused Nos. 1 to 10 to quash and set aside the order passed by learned Metropolitan Magistrate and Negotiable Instruments Act, Court No. 4, Ahmedabad in Criminal Case No. 877 of 2009 for the offence punishable under Section 138 read with 141 of the Negotiable Instruments Act, 1881. 2. Respondent No. 2 herein-original complainant-ICICI Bank Limited had instituted the impugned complaint being Criminal Case No. 877 of 2009 in the Court of learned Metropolitan Magistrate and Negotiable Instruments Act, Court No. 4, Ahmedabad against the applicants herein-original accused Nos. 1 to 10 and others for the offences punishable under Section 138 read with 141 of the Negotiable Instruments Act for dishonour of cheque issued by original accused No. 11 and signed by original accused No. 12 as Director and authorised signatory of original accused No. 11-Company. In the said complaint, learned Magistrate has directed to issue summon against the applicants herein for the offence punishable under Section 138 of the Negotiable Instruments Act. Hence, the applicants herein-original accused Nos. 1 to 10 have preferred the present application under Section 482 of the Code of Criminal Procedure to quash and set aside the impugned complaint qua them. 3. Mr. Kinariwala, learned advocate appearing on behalf of the applicants herein-original accused Nos. 1 to 10 has submitted that the applicants have not committed an offence punishable under Section 138 read with 141 of the Negotiable Instruments Act, as cheque in question, which has been dishonoured and for which the impugned complaint has been filed, was issued by original accused No. 11- Company and signed by original accused No. 12 as Director and authorised signatory of original accused No. 11-Company. Therefore, when the original accused Nos. 1 to 10 were not the drawers of the cheque in question and the same has not been drawn from the Bank Accounts maintained by them as Directors of the original accused No. 11-Company, they cannot be held responsible for the offence punishable under Section 138 of the Negotiable Instruments Act. It is submitted that apart from that, even there are no specific averments and allegations in the impugned complaint that the applicants herein were in day to day affairs and management of the accused No. 11-Company. It is submitted that apart from that, even there are no specific averments and allegations in the impugned complaint that the applicants herein were in day to day affairs and management of the accused No. 11-Company. Learned advocate appearing on behalf of the applicants has relied upon the decision of the Hon'ble Supreme Court in the case of Central Bank of India vs. Asian Global Ltd. and Others, AIR 2010 SC 2835 and has requested to allow the present application and to quash and set aside the impugned complaint qua the applicants herein- original accused Nos. 1 to 10. 4. Mr. T.V. Shah, learned advocate appearing on behalf of respondent No. 2-original complainant has chosen to remain absent. On earlier occasions also, due to non-availability of Mr. Shah, learned advocate appearing on behalf of respondent No. 2-original complainant, the matter was required to be adjourned. Under the circumstances and considering the earlier order dated 16.12.2011 passed by this Court, the present application is taken up for final hearing ex-parte. 5. Mr. L.B. Dabhi, learned Additional Public Prosecutor appearing on behalf of respondent No. 1-State has requested to pass an appropriate order in the facts and circumstances of the case. 6. Having heard Mr. Kinariwala, learned advocate appearing on behalf of the applicants herein-original accused Nos. 1 to 10 and considering the averments and allegations made in the impugned complaint, it appears to the Court that the cheque in question, which has been dishonoured and for which the impugned complaint has been filed, has been issued by original accused No. 11-Company and signed by original accused No. 12 as Director and authorised signatory of original accused No. 11-Company. Therefore, admittedly, the applicants herein-original accused Nos. 1 to 10 are not the drawer of the cheque in question and the cheque in question is not issued by the applicants herein from the Bank Account maintained by them. Therefore, the impugned complaint against the present applicants herein-original accused Nos. 1 to 10 would not be maintainable. Even otherwise, considering the averments and allegations in the impugned complaint, there are no specific averments and allegations against the applicants herein-original accused Nos. Therefore, the impugned complaint against the present applicants herein-original accused Nos. 1 to 10 would not be maintainable. Even otherwise, considering the averments and allegations in the impugned complaint, there are no specific averments and allegations against the applicants herein-original accused Nos. 1 to 10 that they were in day to day affairs and management of the Company and in absence of any such averments and allegations in the impugned complaint against the applicants herein, the applicants herein cannot be held vicariously liable for the offence alleged to have been committed by original accused No. 11. Under the circumstances, to continue the criminal proceedings against the applicants herein shall be abuse of process of law and Court and the impugned complaint against the applicants herein, deserves to be quashed and set aside. 7. In view of the above and for the reasons stated hereinabove, the application succeeds. The impugned complaint being Criminal Case No. 877 of 2009 pending in the Court of learned Metropolitan Magistrate and Negotiable Instruments Act, Court No. 4, Ahmedabad is hereby quashed and set aside so far as the present applicants herein-original accused Nos. 1 to 10 are concerned. However, the same shall be without prejudice to the rights and contentions of the original complainant against rest of the accused persons i.e. respondent Nos. 11 and 12 and they shall be dealt with by the learned Trial Court in accordance with law and on merits, without in any way being influenced by the present order. Rule is made absolute to the aforesaid extent. Application allowed.