JUDGMENT : 1. The above group of four Criminal Applications has been filed by the Applicant - original accused, challenging the orders passed by the learned Metropolitan Magistrate, 28th Court, Esplanade, Mumbai. By the said orders the learned Magistrate directed to issue process against the present Applicant/accused and other accused in the complaints filed by Respondent No.1. 2. It appears that Respondent No.1 – original Complainant has filed different four complaints against the accused including the present Applicant under Section 138 of the Negotiable Instruments Act, and, all the Criminal Applications involve common facts and raise a common issue, and therefore, heard and disposed of together. 3. The learned counsel for the parties submits that the facts in all the four matters are similar, and hence, by consent of the learned counsel for the parties, Criminal Application No.21 of 2019 is treated as a lead matter and the facts in the said Criminal Application No. 21 of 2019 would be referred to for the sake of convenience. The parties would be referred to as per their status in the Trial Court. 4. Rule, with the consent of the learned counsel for the parties made returnable and heard forthwith. 5. The facts giving rise to filing of the Criminal Application, in brief, can be stated thus :- It is the case of the Applicant that the Applicant is a former independent director of M/s. D S Kulkarni Developers Limited i.e. the original Accused No.1 Company. The Applicant joined D S K Global Education & Research Pvt. Ltd., a subsidiary of the company, as an independent director on 24/10/2008 and resigned there from on 23/03/2013. He was associated with the company as an independent director from 30/09/2014 till 08/05/2017. It is the case of the Applicant that he resigned from the company as an independent director by tendering a written resignation to the Chairman on 03/05/2017. The resignation of the Applicant was notified to the Registrar of Companies and his cessation of services has been recorded with the Registrar of Companies with effect from 08/05/2017. The Applicant has worked with several multinational companies in an advisory role as well as on full time employee basis. 6. Respondent No.1 is a company dealing in financing real estate projects. The Applicant has worked with several multinational companies in an advisory role as well as on full time employee basis. 6. Respondent No.1 is a company dealing in financing real estate projects. Respondent No.1 lodged a complaint bearing No.66/SS/2017, before the learned Magistrate, 28th Court, Esplanade, Mumbai wherein the present Applicant, amongst others, stand arraigned as Accused No.6. The said complaint has been filed by the Complainant for the alleged commission of an offence under Section 138 of the Negotiable Instruments Act. It is the case of Respondent No.1 – complainant in the complaint that the complainant and accused No.1 company had friendly relationship. In the year 2016, accused No.1 approached the complainant for a friendly loan of Rs.56,00,000/-. Pursuant to the request the complainant agreed to finance accused No.1 with a loan on interest. In discharge of its liability, accused No.1 issued 7 cheques for Rs.8,00,000/- each in favour of the complainant drawn on Bank of Maharashtra, Bajirao Road, Pune. The said cheque were signed by original accused No.4 Hemanti D Kulkarni as authorized signatory of accused No.1 company. Out of the said 7 cheques, when one cheque bearing no.455494 dated 24/11/2016 for Rs.8,00,000/- was presented for encashment, the said cheque returned dishonoured along with memo with reasons “funds insufficient”. The complainant sent a legal notice dated 15/12/2016 to accused No.1 company and all other accused. Accused No.1 company and other accused neither responded to the said statutory notice nor paid the demanded amounts. Consequently the complainant approached the learned Metropolitan Magistrate, 28th Court, Esplanade, Mumbai and filed a complainant under Section 138 of the Negotiable Instruments Act against accused No.1 company and other accused including the present Applicant as accused No.6. 7. It is alleged in the complaint that the present Applicant is a director of accused No.1 company along with other accused. It is further alleged that accused No.4 is a authorized signatory and key managerial person whereas accused No.5 is the Chief Financial Officer of the company. It is alleged that accused Nos.2 to 8 are all collectively involved in the core functioning of the company including all its major decision making i.e. finance etc and, they were and are in charge of and responsible for the conduct of the business and affairs of the company at the time commission of the offence. It is also alleged that Accused Nos. It is also alleged that Accused Nos. 2 to 8 play an active role in the functioning affairs and business activities of the company. It is also alleged that Accused Nos. 2 to 8 have dealt with Respondent No.1 complainant at the time of the transaction with the complainant. 8. Upon perusal of the complainant, verification and additional affidavit of the complainant and documents, the learned Metropolitan Magistrate has came to a conclusion that the mandatory provisions of Section 138 of the Negotiable Instruments Act have been complied with by the complainant, and prima facie case is made out against the accused. The learned Metropolitan Magistrate therefore passed order directing issuance of process against the accused for the offence punishable under Section 138 of the Negotiable Instruments Act. It is the said order of the learned Metropolitan Magistrate which is taken exception to by way of the above Criminal Applications. 9. Heard the learned counsel for the parties. 10. The learned counsel for the Applicant submits that the applicant was appointed as an independent director on the board of accused No.1 company and his tenure was later extended vide appointment letter issued in October 2014. It is submitted that the appointment letter of the applicant categorically states that the applicant is appointed as an independent director on an advisory role specifically pertaining to the talent recruitment and technical and marketing support to the accused No.1 company. It is further submitted that the applicant being an independent director was not a party to any agreements or documents in the present transaction, and the applicant was completely unaware of the loan transaction between accused No.1 company and Respondent No.1 complainant as well as issuance of the said cheque by accused No.1 company to Respondent No.1 complainant. It is also submitted that the Applicant was neither the signatory of the said cheques nor the Managing Director, or Chairman or Executive Director or Whole time Director or CEO, and he had no control over the administration and/or day to day affairs of accused No.1 company. The learned counsel for the Applicant submits that the applicant was playing an advisory role in the company. It is submitted that the applicant for personal reasons resigned from accused No.1 company with effect from 08/05/2017 and handed over the charge to the concerned persons. The learned counsel for the Applicant submits that the applicant was playing an advisory role in the company. It is submitted that the applicant for personal reasons resigned from accused No.1 company with effect from 08/05/2017 and handed over the charge to the concerned persons. It is submitted that from the documents obtained from the records of Registrar of Companies, Pune reveal that the applicant’s appointment with accused No.1 company was an independent director/Non-executive Director, and he has no role in the administration and functioning of the accused No.1 company at the relevant time. The learned counsel for the Applicant submits that by no stretch of imagination, the applicant, being an independent director, was held liable and responsible for failure of accused No.1 company to pay its debts or clear the cheques issued to its creditors. He further submitted that in the proceedings arising out of the Negotiable Instruments Act, the independent directors cannot be considered to be at helm of the company and therefore cannot be prosecuted under the said Act. It is submitted that there is no material on record to show that the applicant was not an independent director who was at the relevant time in-charge of the affairs, administration, financial transaction and functioning of the company. It is also submitted that the material produced by the Applicant is of incontrovertible, unimpeachable character and therefore has to be considered to arrive at a conclusion that the applicant was only appointed as an independent director with an advisory role in the company. In support of the aforesaid contentions, the learned counsel for the Applicant sought to rely upon the judgment of this Court in the case of Alok sharma & ors v/s. State of Maharashtra, decided on 10/02/2015. He therefore submitted that the proceedings initiated by the complainant against the present Applicant are malafide and, the assertions in the complaint are nothing but mere reproduction of the provisions of Section 141 of the Negotiable Instruments Act. He submits that the Criminal Applications deserve consideration. 11. The learned counsel appearing for Respondent No.1 original complainant submits that on the request being made, the complainant advanced a friendly loan to accused No.1 company. It is submitted that when the cheque, issued by accused No.1 company in favour of Respondent No.1 complainant, was presented in the bank, the same was dishonoured with reasons “insufficient funds”. 11. The learned counsel appearing for Respondent No.1 original complainant submits that on the request being made, the complainant advanced a friendly loan to accused No.1 company. It is submitted that when the cheque, issued by accused No.1 company in favour of Respondent No.1 complainant, was presented in the bank, the same was dishonoured with reasons “insufficient funds”. It is also submitted that the demand notice issued to and delivered to the accused has not been responded by them. It is submitted that the decision making process of accused No.1 company rests in accused Nos.2 to 8, and accused Nos.2 to 8 are the persons who play an active role in the functioning of the affairs and business activities of accused No.1 company. He further submits that the accused have failed in discharging their admitted liability and have committed an offence under Section 138 of the Negotiable Instruments Act. He therefore submits that Applications deserve no consideration. 12. Heard the learned counsel for the Applicant and the learned counsel for Respondent No.1. With their able assistance perused the pleadings and grounds mentioned in the Applications, other documents and material placed on record and the reasons assigned by the learned Magistrate in issuing the process against the accused. 13. The learned counsel appearing for Respondent No.1 complainant invites this Court’s attention to the letter written by the present Applicant to the Board of Directors of Accused No.1 Company. The said letter is at page 56 of the Criminal Application No.21 of 2019. The Applicant has testified his consent to act as Director of D.S. Kulkarni Developers Limited, pursuant to Section 264(1)/266(1)(a) of the Companies Act, 1956 and certify that he has not been disqualified to act as a Director under Sections 267 and/or 274 of the Companies Act, 1956. 14. The learned counsel for Respondent No.1 complainant also invites this Court’s attention to the Form No.DIR-12, which is at Page 96 of the Criminal Application. The said Form No.DIR-12 relates to particulars of appointment of directors and the key managerial personnel and the changes among them. The name of the company shown in the said Form is D.S. Kulkarni Developers Ltrd. The name of Applicant Kamalksihore Shrigopal Taparia appears in the column of Details of Managing Director or Director of the Company. The said Form No.DIR-12 relates to particulars of appointment of directors and the key managerial personnel and the changes among them. The name of the company shown in the said Form is D.S. Kulkarni Developers Ltrd. The name of Applicant Kamalksihore Shrigopal Taparia appears in the column of Details of Managing Director or Director of the Company. It is important to note at this stage that the Designation of the Applicant mentioned in the said form is “Director”. 15. There are specific allegations made by the complainant against the present Applicant that he is the director of accused No.1 company along with other accused and they are all collectively involved in the core functioning of the company including all its major decision making i.e. finance etc and, they were and are in charge of and responsible for the conduct of the business and affairs of the company at the time commission of the offence. It is also alleged that Accused Nos. 2 to 8 play an active role in the functioning affairs and business activities of the company. The complainant has specifically alleged that Accused Nos. 2 to 8 have dealt with Respondent No.1 complainant at the time of the transaction with the complainant. It is required to be noted that the present Applicant is original accused No.6 in the complaint. 16. In view of the aforesaid letter of the Applicant testifying his consent to act as a Director and considering the particulars mentioned in Form No.DIR-12 showing the designation of the Applicant as Director of accused No.1 as also in the light of the allegations made by the complainant in the complaint against the Applicant and other accused, this Court is of the opinion that, whether the appointment of the Applicant was an independent director or the director of the company and, whether he was playing active role in the day to day affairs of the company at the relevant time or not, would be a matter for appreciation of the contentions of the parties by the trial Court. It would depend upon appreciation of evidence, and the documents filed in the Trial Court. 17. The first Respondent herein lodged a complaint before the learned Magistrate for offence punishable under Section 138 of the Negotiable Instruments against the present Applicant and other accused. It would depend upon appreciation of evidence, and the documents filed in the Trial Court. 17. The first Respondent herein lodged a complaint before the learned Magistrate for offence punishable under Section 138 of the Negotiable Instruments against the present Applicant and other accused. In support the complaint, the first Respondent has filed verification and additional affidavit of the complainant and documents before the Trial Court. The Trial Court has came to a conclusion that prima facie case is made out against the accused, and therefore issued process against the accused for the offence punishable under Section 138 of the Negotiable Instruments Act. The question as to whether the present Applicant was an independent director of accused No.1 company or he was a director of accused No.1 company at the relevant time has to be decided only during trial after giving opportunity to the parties to lead evidence in that regard. 18. In the light of aforesaid discussion and considering the allegations made in the complaint, the material placed on record, it will not be possible to interfere with the order of issuance of process. No case for interdiction at the hands of this Court in its jurisdiction under Section 482 of the Criminal Procedure Code is made out. All the Criminal Applications stand rejected. Rule stands discharged. All contentions raised on merits are kept open for being agitated before the Trial Court. Needless to state that the observations made herein above are prima facie in nature and confined to the adjudication of the present Criminal Applications. 19. In the peculiar facts of the present case, it is desirable that the concerned Court shall expedite the hearing of the proceedings and take it to the logical ends as expeditiously as possible, however, on or before 30th September 2019, keeping in view the relevant provisions of the Negotiable Instruments Act as also the judgment of the Apex Court in the case of Indian Bank Association and others v/s. Union of India and others, reported in (2014) 5 SCC 590 .