2019 (8) TMI 1089 - HC - Indian Laws

Dishonor of Cheque - insufficiency of funds - section 138 of NI Act - HELD THAT - Supreme Court in the case of Adalat Prasad v/s Rooplal Jindal ors 2004 (8) TMI 647 - SUPREME COURT held that, the Court, who has issued process, has no power of review its order of issuance of process, and hence order of issuing process cannot be recalled - However, in the present case the applicant filed application for discharge/recall of order of issuance of process before the learned Magistrate. The complaint does not contain the basic averment which is sufficient to make out a prima facie case against the present applicant. Because of the absence of more particulars about the role of the applicant as the director, it could not be held that the applicant as director is concerned with the issuance of the cheques in question. Considering the unimpeachable and incontrovertible document i.e. Form No.32 produced by the applicant, this Court is of the view that the Criminal Application deserves to be allowed. The Applicant was not the director of the accused No.1 company at the time of issuance of cheques and therefore is not held to be responsible for the business of the said company as averred in the complaint. Respondent No.2/Complainant has not brought on record any unimpeachable and incontrovertible evidence to show that the applicant is concerned with the issuance of cheques. Application allowed.

Issues Involved:
1. Validity of the discharge application filed by the applicant.
2. Applicant's resignation from the board of directors and its effect on liability under Section 138 of the Negotiable Instruments Act.
3. Prima facie case against the applicant under Section 138 of the Negotiable Instruments Act.
4. Role and responsibility of the applicant in the issuance of the dishonoured cheques.

Issue-wise Detailed Analysis:

1. Validity of the discharge application filed by the applicant:
The applicant challenged the order dated 3rd January 2004 by the learned Magistrate rejecting his application for discharge/recalling the process. The application was filed under the exposition of law in K M Mathew v/s. State of Kerala & Anr. (1992) 1 SCC 217, which allowed the Magistrate to reconsider its decision of issuing summons under Section 204 of the Code. Although the Supreme Court in Adalat Prasad v/s Rooplal Jindal & ors (2004) 7 SCC 338 later held that the Magistrate has no power to review its order of issuance of process, the applicant's filing was valid under the then-prevailing law.

2. Applicant's resignation from the board of directors and its effect on liability under Section 138 of the Negotiable Instruments Act:
The applicant resigned from the board of directors of M/s. Echovox (India) Pvt. Ltd. effective 01/04/2003, which was documented by Form No.32 filed with the Registrar of Companies on 16/04/2003. The cheques in question were issued on 3rd and 4th May 2003, after the applicant's resignation. The applicant argued that he was not involved in the transactions or the day-to-day affairs of the company at the time the cheques were issued, thus should not be held liable under Section 138 of the Negotiable Instruments Act.

3. Prima facie case against the applicant under Section 138 of the Negotiable Instruments Act:
The learned Magistrate initially found a prima facie case against the applicant, stating that the applicant's resignation and his role as a legal advisor needed to be proved during the trial. However, the High Court found that the complaint did not contain sufficient particulars about the applicant's role at the time of the issuance of the cheques. The absence of more specific allegations in the complaint and the unimpeachable evidence of the applicant's resignation led the High Court to conclude that no prima facie case was made out against the applicant.

4. Role and responsibility of the applicant in the issuance of the dishonoured cheques:
The applicant was not a signatory to the cheques and had resigned before their issuance. The High Court emphasized that the applicant's resignation was documented and effective before the cheques were issued. The complainant failed to provide any evidence showing the applicant's involvement in the company's affairs at the time of the issuance of the cheques. Consequently, the High Court ruled that the applicant could not be held responsible for the business of the company or the dishonoured cheques.

Conclusion:
The High Court quashed and set aside the order dated 3rd January 2004 by the learned Magistrate and discharged the applicant from Complaint No.538 of 2003. The observations made were prima facie in nature and confined to the adjudication of the present Criminal Application. The learned Magistrate was directed to proceed against the remaining accused and decide the complaint on its own merits and in accordance with law. The Criminal Application was allowed, and the rule was made absolute to the extent of discharging the applicant.

← Previous Next →