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2017 DIGILAW 327 (RAJ)

Amar Upadhyay v. State of Rajasthan

2017-01-30

VIJAY BISHNOI

body2017
JUDGMENT : Vijay Bishnoi, J. 1. This criminal misc. petition under Section 482 Cr.P.C. has been filed by the petitioner being aggrieved with the order dated 12.05.2016 passed by the Additional Sessions Judge No. 4, Udaipur (hereinafter referred to as 'the revisional court'), whereby the Criminal Revision Petition No. 9/2013 filed by the petitioner has been dismissed. The said revision petition was filed by the petitioner being aggrieved with the order dated 07.11.2012 passed by the Special Judicial Magistrate (NI Act Cases) No. 2, Udaipur (hereinafter referred to as 'the trial court') in Criminal Complaint Case No. 3975/2009, whereby the trial court took cognizance against the petitioner for the offence punishable under Section 138 of Negotiable Instrument Act (hereinafter referred to as 'the NI Act') and summoned him through warrant of arrest. 2. Brief facts of the case are that the respondent No. 2 filed a complaint under Section 138 of the NI Act before the trial court while alleging that M/s. Mihir Virani Multi Trade Pvt. Ltd. (hereinafter referred to as 'the MVMT Company') had issued cheque to him for business purpose, however, on presenting the said cheque in the concerned bank, the same was not honored. A notice under Section 138 of the NI Act was sent to the MVMT Company and the same was received by it, but the dues of the respondent No. 2 had not been paid and, therefore, he had filed the complaint against the Directors and the Manager of the MVMT Company. 3. Initially, the trial court took cognizance against the petitioner and one another person viz. Sunil Vyas vide order dated 20.02.2008, however, a revision petition was preferred by the petitioner against the said order of trial court of taking cognizance. The said revision petition was allowed and the matter was remanded to the trial court with a direction to consider and decide the ground raised by the petitioner to the effect that in 2007 he was not the Director of the MVMT Company as he had already resigned on 28.12.2013. 4. On remand, the trail court, after providing opportunity of hearing to the petitioner, has took cognizance against the petitioner for the offence punishable under Section 138 of the NI Act vide impugned order dated 07.11.2012. 4. On remand, the trail court, after providing opportunity of hearing to the petitioner, has took cognizance against the petitioner for the offence punishable under Section 138 of the NI Act vide impugned order dated 07.11.2012. Being aggrieved with the same, the petitioner preferred revision petition before the revisional court, however, the same has been dismissed by the revisional court vide order dated 12.05.2016. Hence, this criminal misc. petition. 5. Learned counsel for the petitioner has argued that as a matter of fact the petitioner was the Director of the MVMT Company only for a brief period i.e. from 28.05.2003 to 23.12.2003 and, therefore, he cannot be held liable for any of the act of the MVMT Company for the year 2007. 6. Learned counsel for the petitioner has further submitted that in the similar type of case, the High Court of Gujarat at Ahmedabad in Special Criminal Application No. 1095/2012 (Amarbahi Harshadbhai Upadhyay Vs. State of Gujarat & Anr.) decided on 07.05.2015 has quashed the criminal proceedings against the petitioner while holding that after 23.12.2003 the petitioner was not the Director of the MVMT Company and, therefore, he cannot be prosecuted for any offence said to have been committed after 23.12.2003. 7. Learned counsel for the petitioner has further relied upon the decision of High Court of Punjab Haryana at Chandigarh rendered in Criminal Misc. No. 54705-M/2007(O/M) (Amar Upadhyay Vs. Sandeep Bamal) decided on 22.07.2009 and argued that in that case also the proceedings against the petitioner under Section 138/141 of the NI Act instituted at Chandigarh has been quashed while holding that the petitioner was not the Director of the M/s. Star Plus Network after 23.12.2003. 8. Learned counsel for the petitioner has further submitted that sufficient evidence was placed on record on behalf of the petitioner to demonstrate that after 23.12.2003, the petitioner was not the Director of the MVMT Company, however, the trial court without taking into consideration the said material produced by the petitioner, has illegally ordered for taking cognizance against the petitioner for the offence punishable under Section 138 of the NI Act. 9. On the strength of the above arguments, learned counsel for the petitioner has prayed that this criminal misc. petition may kindly be allowed and the impugned orders passed by the courts below may kindly be set aside. 10. 9. On the strength of the above arguments, learned counsel for the petitioner has prayed that this criminal misc. petition may kindly be allowed and the impugned orders passed by the courts below may kindly be set aside. 10. Per contra, learned Public Prosecutor has opposed the prayer of the petitioner and submitted that when the complainant has placed material before the trial court to the effect that in the year 2007, the petitioner was working as Chairman/Director of the MVMT Company, the courts below have not committed any illegality in passing the impugned orders. 11. Heard learned counsel for the petitioner and perused the impugned orders passed by the courts below. 12. The trial court has specifically observed in the impugned order that the complainant has produced certificate, brochure, CD etc., in which the petitioner is seen as promoting the schemes of the MVMT Company while claiming himself as Chairman/Director of the MVMT Company. The trial court has also taken into consideration the arguments raised on behalf of the petitioner that he has resigned from the MVMT Company on 23.12.2003 and held that though, a copy of resignation letter is available on record but it is not clear that the said resignation was ever accepted by the MVMT Company or not. The trial court has emphasised on the documentary evidence as well as the oral evidence produced on behalf of the respondent to the effect that in the year 2007, the petitioner was promoting the schemes of the MVMT Company as being a Chairman/Director of the MVMT Company and the petitioner has failed to demonstrate before the trial court that in what capacity he was promoting the schemes of the MVMT Company in the year 2007. 13. The revisional court has also taken into consideration he material available on record in detail and found that when prima facie evidence of this effect is available on record that the petitioner was promoting the schemes of the MVMT Company as being a Chairman/Director in the year 2007, it cannot be said that the petitioner has resigned from the MVMT Company in the year 2003 and he has no relation with the MVMT Company thereafter. 14. 14. After going through the impugned orders passed by the courts below, I don't find any illegality in the same because the prima facie evidence of this effect is available on record that at the relevant time i.e. in the year 2007, the petitioner was the Chairman/Director of the MVMT Company. 15. So far as the above referred judgments, on which the learned counsel for the petitioner has placed reliance, are concerned, it is to be noticed that in those cases, the complainants have admitted that they were not aware about the fact that the petitioner has resigned from the MVMT Company and M/s. Star Plus Network Ltd. in the year 2003 and under wrong impression, they have implicated the petitioner as party respondent. 16. However, in the present case, the complainant has come out with specific documentary evidence to prove the allegation that the petitioner was working as the Chairman/Director of the MVMT Company at the relevant time i.e. in the year 2007. 17. In view of the above, the judgments referred by learned counsel for the petitioner are of no help to the petitioner. 18. Moreover, though this criminal misc. petition has been filed by the petitioner under Section 482Cr.P.C. but in fact it is a second revision petition, which is clearly barred under Sub-section (3) of Section 397 Cr.P.C. 19. Accordingly, this criminal misc. petition is dismissed. 20. Stay petition also stands dismissed.