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2013 DIGILAW 2105 (RAJ)

Rajesh Kumar v. State of Rajasthan

2013-11-26

SANDEEP MEHTA

body2013
JUDGMENT 1. - These instant miscellaneous petitions have been filed by the petitioner seeking quashing of the proceedings of the complaint complaints No. 409/1999, 64/2000 and 193/2000 pending in the Court of learned Judicial Magistrate (Jr. Div), Railmagra against the petitioner and others for the offences under Section 138 of the Negotiable Instrument Act. 2. The respondent No. 2 herein submitted a complaint against the petitioner, K.D. Sharma, Smt. Sudesh Sharma and Veerbhoomi Plantation (India) Ltd. for the offence under Section 138 of the N.I. Act. As per the allegations levelled in the complaint, the petitioner and the other co-accused were commercial directors and the company Veerbhoomi Plantation Ltd. allegedly issued a cheque of Rs. 7000/- to the complainant towards her valid dues. The cheque on being presented for encashment was dishonoured on which the complaint was filed by the complainant in the Court concerned. The learned trial Judge proceeded on the complaint and took cognizance and summoned the petitioner to face the trial by the order dated 7.12.1999. The petitioner has now approached this Court by way of instant miscellaneous petition seeking quashing of the proceedings of complaint. 3. Learned counsel for the petitioner contended that the cheque in question was issued by Shri K.D. Sharma, Director of the Company Veerbhoomi Plantation Ltd. in favour of the complainant on 7.6.1999. He has filed on record a copy of the certificate issued by the Registrar of Companies and claims that the petitioner retired as a director from the aforesaid company on 10.4.1998 and thus his ties with the company were severed on that day and thereafter he has wrongly been summoned to face trial in this case. Learned counsel urged that as the petitioner ceased to be director of the company w.e.f. 10.4.1998, he cannot be held responsible for the cheque dated 7.6.1999 which was admittedly issued by the director K.D. Sharma under his signatures alone. 4. Notice of the miscellaneous petition was issued to the complainant respondent No. 2 but none has appeared on her behalf. 5. From a perusal of the photo-state copy of certified copy of the Form No. 32 submitted along with the petition, it is evident that the petitioner resigned from the directorship of the Company on 10.4.1998. Learned counsel for the petitioner has presented the certified copy of the Form No. 32 for perusal of this Court. 5. From a perusal of the photo-state copy of certified copy of the Form No. 32 submitted along with the petition, it is evident that the petitioner resigned from the directorship of the Company on 10.4.1998. Learned counsel for the petitioner has presented the certified copy of the Form No. 32 for perusal of this Court. The aforesaid Form No. 32 is a public document issued by the Registrar of Companies and as such this certificate can be relied upon in the instant proceedings filed before this Court under Section 482 Cr.P.C. for quashing of proceedings of the complaint. The Hon'ble Apex Court in Anita Malhotra v. Apparel Export Promotion Council & Anr. reported in (2012) 1 SCC 520 held that the certified copy of the Form No. 32 issued by the Registrar of Companies is an admissible piece of evidence relevant for finding out and fixing liability of the director concerned. The Hon'ble Apex Court held as under: "15. In Harshendra Kumar D. v. Rebatilata Koley & Ors. (2011) 3 SCC 351 , while considering the very same provisions coupled with the power of the High Court under Section 482 of the Code of Criminal Procedure, 1973 (in short the Code) for quashing of the criminal proceedings this Court held: 25. In our judgment, the above observations cannot be read to mean that in a criminal case where trial is yet to take place and the matter is at the stage of issuance of summons or taking cognizance, materials relied upon by the accused which are in the nature of public documents or the materials which are beyond suspicion or doubt, in no circumstance, can be looked into by the High Court in exercise of its jurisdiction under Section 482 or for that matter in exercise of revisional jurisdiction under Section 397 of the Code. It is fairly settled now that while exercising inherent jurisdiction under Section 482 or revisional jurisdiction under Section 397 of the Code in a case where complaint is sought to be quashed, it is not proper for the High Court to consider the defense of the accused or embark upon an enquiry in respect of merits of the accusations. It is fairly settled now that while exercising inherent jurisdiction under Section 482 or revisional jurisdiction under Section 397 of the Code in a case where complaint is sought to be quashed, it is not proper for the High Court to consider the defense of the accused or embark upon an enquiry in respect of merits of the accusations. However, in an appropriate case, if on the face of the documents - which are beyond suspicion or doubt - placed by the accused, the accusations against him cannot stand, it would be travesty of justice if the accused is relegated to trial and he is asked to prove this defense before the Trial Court. In such a matter, for promotion of justice or to prevent injustice or abuse of process, the High Court may look into the materials which have significant bearing on the matter at prima facie stage. As rightly stated so, though it is not proper for the High Court to consider the defense of the accused or conduct a roving enquiry in respect of merit of the accusation, but if on the face of the document which is beyond suspicion or doubt placed by the accused and if it is considered the accusation against her cannot stand, in such a matter, in order to prevent injustice or abuse of process, it is incumbent on the High Court to look into those document/documents which have a bearing on the matter even at the initial stage and grant relief to the initial stage and grant relief to the person concerned by exercising jurisdiction under Section 482 of the Code. 16. Inasmuch as the certified copy of the annual return dated 30.9.1999 is a public document, more particularly, in view of the provisions of the Companies Act, 1956 read with Section 74(2) of the Indian Evidence Act, 1872, we hold that the Appellant has validly resigned from the Directorship of the Company even in the year 1998 and she cannot be held responsible for the dishonor of the cheques issued in the year 2004." 6. Considering the facts of the cases at hand in light of the above observations made by the Hon'ble Supreme Court, this Court feels, the resignation of the petitioner from the company as on the date of issuance of the disputed cheque is amply proved to the satisfaction of this Court by the Form No. 32. Considering the facts of the cases at hand in light of the above observations made by the Hon'ble Supreme Court, this Court feels, the resignation of the petitioner from the company as on the date of issuance of the disputed cheque is amply proved to the satisfaction of this Court by the Form No. 32. In this view of the matter, the continued prosecution of the petitioner in this case for the offence under Section 138 of the N.I. Act cannot be justified. Otherwise, also the cheque in question was issued by Mr. K.D. Sharma, the director of the company under his single signatures. Therefore, the petitioner's involvement in this case is absolutely unjustified. 7. Accordingly, the miscellaneous petitions deserve to be accepted and are hereby accepted. The proceedings of the aforementioned criminal complaints going on against the petitioner in the Court of learned Judicial Magistrate (Jr. Div.) Railmagra Dist. Rajsamand are hereby quashed. However, the proceedings shall be continued against the remaining accused.Petition allowed. *******