TMI Blog2019 (7) TMI 449X X X X Extracts X X X X X X X X Extracts X X X X ..... he trial would be abuse of process of Court. In the present case, as already observed the petitioners were directors on the date of commission of alleged offence and were responsible for the business of the said company as averred in the complaint. The petitioners have not brought on record unimpeachable, incontrovertible evidence which is beyond suspicion or doubt or totally acceptable circumstances which may clearly indicate that the petitioners could not have been concerned with the issuance of cheques and asking them to stand the trial would be abuse of process of Court. Therefore, prayer of the petitioners to cause interference in the impugned order deserves no consideration. Petition dismissed. - CRIMINAL WRIT PETITION NO. 4470 OF 2017 - - - Dated:- 21-6-2019 - S.S. SHINDE, J. Mr. Samsher Garud a/w. Mr. Santosh Avhad i/b. Jayakar Partners for petitioner. Mr. Parvez Rustomkhan a/w. Ms. Anuja Jhunjhunwala and Ms. Rukshin Ghiaha i/b. M. Mulla Associates for Respondent No. 2. Mr. N.B. Patil, APP for Respondent/State. JUDGMENT : 1. Rule, Rule with the consent of learned counsel for the parties made returnable fort ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p.a. against which supplies have not bee made. Accordingly the said company i.e. Accused No. 1 issued 8 undated cheques bearing nos. 186307, 186308, 186309, 186310, 186311, 186312, 186313, 186314, each of ₹ 1 Crore to secure the advance provided by the Respondent No. 2 under the supply agreement. The said company failed to commence supply of rectified spirits in terms of supply Agreement, the Respondent No. 2 requested the said company to replace the above mentioned cheques with fresh cheques towards the amount of the advance alongwith interest of ₹ 64,62,000/ . Accordingly, Accused No. 1 issued the following fresh cheques towards advance amount and the interest aggregating to ₹ 8,14,62,000/ . Sr.No. Date Cheque No. Amount (Rs.) 1 15/3/2016 642902 62,62,000/ 2 15/3/2016 642903 2,00,00,000/ 3 15/3/2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... envelopes returned with the postal remark Refused to accept the delivery and accused no. 6, 7, 9 the envelope returned with the postal remark Shifted . Respondent no. 2 filed the complaint under section 138 r/w. 141 of the said Act before the Ld. Metropolitan Magistrate, 14th Court, at Girgaon, Mumbai. The Learned Magistrate was pleased to issue process against the petitioners. Hence, the present petition. 8. Learned counsel appearing for petitioners submit that, plain reading and bare perusal of the complaint as well as the verification statement of Shri. Ritesh Shah recorded therein, nowhere alleged and averred in the complaint as to how the present petitioners are responsible for conducting day to day affairs of the said company. Further, the Respondent No. 2 nowhere alleged or averred in the complaint that the alleged offence had been committed either with the consent or connivance of the petitioners or that the same was attributable to any neglect on the part of the petitioners. Respondent No. 2 nowhere alleged or averred in the complaint that the said company has committed the alleged offence with the knowledge of the petitioners or that the petitioners had fail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Magistrate under Section 204 of Cr.P.C. for issuing process against the petitioners. There are no specific allegations made by Respondent No. 2 in the notice issued to the petitioners. 11. Learned counsel appearing for petitioners in support of aforesaid statements relied upon the ratio laid down by the Hon ble Supreme Court in the case of Sunil Bharti Mittal V. CBI reported in (2015) 4 Supreme Court Cases 609 . It is submitted that, Sine qua non for taking cognizance of the offence is the application of mind by the Magistrate and his satisfaction that the allegations, if proved, would constitute an offence. It is submitted that, in the impugned order no reasons are assigned before issuing the process against the petitioners. 12. On the other hand learned counsel appearing for Respondent No. 2 relying upon the averments in the complaint and the reasons assigned in the impugned order submits that, Respondent No. 2 has followed the proper procedure, in as much as, notice contemplated in the procedure under the said Act was given to the petitioners and thereafter complaint was filed before the Magistrate. The averments in the said complaint would clearly in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere was insufficient funds in the bank account; (d) that the complainant has sent the notice of demand dated 9th September, 2016, to all the Accused within 30 days of the receipt of the intimation of dishonor of the aforesaid cheques from the bank; (e) that the Accused have failed to comply with the notice dated 9th September 2016, by not paying the amount of ₹ 8,50,00,000/ (Rupees eight crores fifty lakhs only) to the complainant within 15 days of the receipt of the complainant s Attorney s letter dated 9th September, 2016. The Accused have, therefore, committed an offence under Section 138 r/w. Section 141 of the Negotiable Instruments Act and are liable to be prosecuted and convicted for the same. 14. Aforesaid averments are reproduced in brief and not in detailed as stated in the complaint by Respondent No. 2. 15. I have carefully perused an averments in the complaint, so as to find out correctness of the order of an issuance of process passed by the learned Magistrate. Upon careful perusal of the averments in the complaint and in particular para no. 22 there of, there are specific averments wherein it is stated that at the time t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instance a case of a Director suffering from a terminal illness who was bedridden at the relevant time or a Director who had resigned long before issuance of cheques. In such cases, if the High Court is convinced that prosecuting such a Director is merely an arm twisting tactics, the High Court may quash the proceedings. It bears repetition to state that no establish such case unimpeachable, incontrovertible evidence which is beyond suspicion or doubt or some totally acceptable circumstances will have to be brought to the notice of the High Court. Such cases may be few and far between but the possibility of such a case being there cannot be ruled out. In the absence of such evidence or circumstances, compliant cannot be quashed. 34.4. No restriction can be placed on the High Court s powers under Section 482 of the Code. The High Court always uses and must use this power sparingly and with great circumspection to prevent inter alia the abuse of the process of court. There are no fixed formulae to be followed by the High Court in this regard and the exercise of this power depends upon the facts and circumstances of each case. The High Court at that stage does not conduct a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs will be desirable. They can also made liable under Section 141(2) by making necessary averments relating to consent and connivance or negligence, in the complaint, to bring the matter under that sub section. (iv) Other officers of a company cannot be made liable under sub section (1) of Section 141. Other officers of a company can be made liable only under sub section (2) of Section 141, by averring in the complaint their position and duties in the company and their role in regard to the issue and dishonour of the cheque, disclosing consent, connivance or negligence. 18. In the present case, as already observed the petitioners were directors on the date of commission of alleged offence and were responsible for the business of the said company as averred in the complaint. The petitioners have not brought on record unimpeachable, incontrovertible evidence which is beyond suspicion or doubt or totally acceptable circumstances which may clearly indicate that the petitioners could not have been concerned with the issuance of cheques and asking them to stand the trial would be abuse of process of Court. Therefore, prayer of the petitioners to cause interference in ..... 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