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2014 DIGILAW 545 (BOM)

Satish Menon v. Purvee

2014-02-27

M.L.TAHALIYANI

body2014
Oral Judgment: 1. Heard learned Counsel Shri H.G. Katekar for the applicant, learned Counsel Shri Vinay Dahat for non-applicant No.1 and learned Additional Public Prosecutor Shri A.K. Bangadkar for nonapplicant No.2. 2. Admit. Heard finally by consent of the learned Counsel appearing for the parties. 3. The applicant is accused No.5 in Criminal Complaint Case No. 8288/2010 pending in the court of learned Judicial Magistrate First Class, Nagpur and is facing trial for the offence punishable under Section 138 of the Negotiable Instruments Act. The applicant had filed the revision application before the Sessions Court challenging the order of issuance of process against him on the ground that the applicant was not Director of the Company at the time of commission of the alleged offence. The revision application has been dismissed. 4. It is contended on behalf of the applicant that the applicant was no more Director of the Company and therefore, he cannot be held vicariously liable for any act done by the Company or other Directors. It is submitted that the applicant had submitted his resignation on 04-3-2010. Learned Counsel Shri Vinay Dahat for non-applicant No.1/complainant has submitted a copy of Master Details of the Company obtained in the year 2011. The applicant was still shown as Director of the Company in the Master Details. 5. The learned Counsel for the applicant has relied upon the judgment of the Supreme Court in the case of Harshendra Kumar D. .vs. Rebatilata Koley etc., reported at AIR 2011 SC 1090 . The reliance has been placed on paragraph 22 of the said judgment, which runs as under:- “22. Criminal prosecution is a serious matter; it affects the liberty of a person. No greater damage can be done to the reputation of a person than dragging him in a criminal case. In our opinion, the High Court fell into grave error in not taking into consideration the uncontroverted documents relating to appellant's resignation from the post of Director of the Company. Had these documents been considered by the High Court, it would have been apparent that the appellant has resigned much before the cheques were issued by the Company. As noticed above, the appellant resigned from the post of Director on March 2, 2004. The dishonoured cheques were issued by the Company on April 30, 2004, i.e., much after the appellant had resigned from the post of Director of the Company. As noticed above, the appellant resigned from the post of Director on March 2, 2004. The dishonoured cheques were issued by the Company on April 30, 2004, i.e., much after the appellant had resigned from the post of Director of the Company. The acceptance of appellant's resignation is duly reflected in the resolution dated March 2, 2004. Then in the prescribed Form (Form No.32), the Company informed to the Registrar of Companies on March 4, 2004 about appellant's resignation. It is not even the case of the complainants that the dishonoured cheques were issued by the appellant. These facts leave no manner of doubt that on the date the offence was committed by the Company, the appellant was not the Director; he had nothing to do with the affairs of the Company. In this view of the matter, if the criminal complaints are allowed to proceed against the appellant, it would result in gross injustice to the appellant and tantamount to an abuse of process of the court.” 6. It is thus clear from the abovesaid judgment, the High Court in exercise of its powers under Section 482 or 397 of the Criminal Procedure can look into the materials which shall have significant bearing on the matter at the trial stage. It is thus clear that uncontroverted document or evidence can be taken into consideration by the High Court in exercise of powers under Section 482 of the Criminal Procedure Code. The Hon'ble Supreme Court has said that 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 defence of the accused or embark upon an enquiry in respect of merits of the accusations. However, in an appropriate case, if on the facts or the documents which are beyond suspicion or doubt, the accusations against him cannot stand, it would be travesty of justice if accused is relegated to trial and he is asked to prove his defence before the trial Court. 7. As such if there is uncontroverted document or evidence, the same can be looked into by the High Court under Section 482 of the Criminal Procedure Code while examining the case for quashing the prosecution. 7. As such if there is uncontroverted document or evidence, the same can be looked into by the High Court under Section 482 of the Criminal Procedure Code while examining the case for quashing the prosecution. In the present case, the document which is relied upon by the applicant is not uncontroverted. There is controversy over the resignation of the applicant. Learned Counsel Shri Vinay Dahat for non-applicant No.1 has submitted that the Master Details of the Company obtained after the alleged date of resignation show that the applicant was Director of the Company on the date of commission of the alleged offence. 8. Since the facts are highly disputed, it is not possible for this Court to go into the details of the factual position and resolved the dispute between the parties by invoking inherent jurisdiction. In my opinion, there is no substance in the application. 9. The application is dismissed. Ad interim order, if any, stands vacated. The observations made by this Court shall not come in the way of the applicant during the course of trial.