TMI Blog2017 (3) TMI 1845X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be considered at this stage. The Court considering the prayer for quashing, does not adjudicate upon the disputed questions of fact. Therefore, the question has to be answered in favour of the respondent No. 2 and against the applicant - petition dismissed. - Criminal Misc. Application (for Quashing & Set Aside Fir/Order) No. 390 of 2014 - - - Dated:- 22-3-2017 - B.N. Karia, J. For the Appellant : Yogesh Lakhani, Senior Advocate, Anip A. Gandhi and Tejas P. Satta, Advocates. For the Respondents : K.P. Raval, APP. JUDGMENT B.N. Karia, J. 1. As requested by Mr. Tejas P. Satta, learned advocate appearing on behalf of the applicant, leave to delete respondent No. 5 from the cause title of the application is allowed. 2. The applicant-accused No. 4 has preferred this application under Section 482 of the Code of Criminal Procedure, 1973 { CrPC for brevity} for quashing and setting aside the complaint, being Criminal Case No. 1244 of 2013 filed before the court of Learned Metropolitan Magistrate, Ahmedabad for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, and all other consequential proceedings arising therefrom. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and on behalf of the other accused persons. That, the said complainant Company had enlarged ₹ 1,00,00,000/- as ICD to the said accused persons, and the said accused had received the said amount through RTGS, and hence, the said accused persons became responsible/liable for the repayment of the said amount to the complainant Company as on the day fixed and on demand. 3.4 That, the said accused persons, in response to fulfillment of their legally enforceable debt towards the complainant Company had issued two cheques in favour of the complainant -company, being (A) cheque No. 887218 dated 20.04.2013 for ₹ 1,00,00,000/- drawn on RBS-The Royal Bank of Scotland N.V. Sakhar Bhavan, Nariman Point, Mumbai duly signed by accused No. 2 as an authorized person of bank account No. 446078, in favour of Adani Ports and Special Economic Zone Limited, and (B) cheque No. 887220 dated 20.04.2013 for ₹ 5,32,603/- drawn on RBS-The Royal Bank of Scotland N.V. Sakhar Bhavan, Nariman Point, Mumbai duly signed by accused No. 2 as an authorized person of the said accused persons of their bank account No. 446078, in favour of Adani Ports and Special Economic Zone Limited. That, the af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Negotiable Instruments Act, being Criminal Case No. 1244/2013 before the court of learned Metropolitan Magistrate, Ahmedabad. That, as the applicant had already resigned from the Company ie., the respondent No. 3, and cease to be a Director of the Company, even at the time of so called commission of the crime, however, he has been arraigned as an accused in the complaint. That, the said complaint is nothing, but misuse of process of law and just to exert pressure on the applicant and to harass him. That, the respondent No. 2, in its complaint, has not clearly alleged the specific role of the applicant in so called commission of crime. That, only those persons, who were in-charge of and responsible for the conduct of the business of the Company at the time of commission of offence, will be liable for criminal action. That, even as per the provisions of Section 141 of the Negotiable Instruments Act, a person can be made vicariously liable, only if, it is proved that, at the time of the commission of offence, he was in charge of and was responsible to the Company for the conduct of the business of the Company. That, the applicant had resigned much earlier then issuance of cheque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... initial stage if that complaint prima facie consists of the essential ingredients of alleged offence. That, there are several disputed questions of facts, which essentially requires leading of and appreciation of the evidence, and therefore, they cannot be decided in a petition under Section 482 CrPC by this Court. That, the subject cheques were issued to the respondent No. 2 as post dated cheques towards security for the Inter Corporate Deposit received by accused Company, while the applicant was a Director and responsible for the affairs of the accused Company. That, tendering of so called resignation by the applicant also, requires leading of the evidence during the trial. That, the applicant has filed Form No. 32, which also creates doubt, because in the said form, no date of resignation of the applicant is cited, which requires trial. That, legal position of filing of the Form No. 32 would be relevant for deciding the liability of applicant and until it is decided, the complaint cannot be quashed. That, the question raised by the applicant would require proper adjudication as to his role in the Company, and therefore also, the complaint cannot be quashed or set aside. In supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter, it appears that Form No. 32 was forwarded to the Registrar of Companies, which is produced on the record. Surprisingly both the parties have produced copies of Form No. 32 issued by the office of the Registrar of Companies, Mumbai (Maharashtra) at page No. 16 and page No. 53 on record. In both the forms, name of the applicant is shown along with the address, which includes date of birth. At page No. 16 in Form No. 32, it is written as 'hereby confirmed that the above mentioned Director is not associated with the Company with effect from 31.12.2012'. At page No. 53, the respondent has produced a copy of Form No. 32 issued by the Registrar of Companies, Mumbai-Maharashtra, which also show name of the applicant, his address and date of birth. Surprisingly, at the bottom, in last column, no date is shown or inserted declaring that the applicant is not associated with the Company. Further details in the said Form No. 32 produced at page No. 16 appears to be, as shown in Form No. 32 produced at page No. 53. 12. Mr. Jay Amin, who has filed his affidavit and which is produced on record, has stated that Form No. 32 filed by the applicant and produced on record before this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt was a Director. It appears that on filing of the complaint by the respondent No. 2 against the present applicant and other co-accused, learned Metropolitan Magistrate, Ahmedabad on 25th September, 2013 was satisfied, considering the averments made in the complaint, affidavit, documentary evidence, to issue summons against the accused for the offence punishable under Section 138 of the Negotiable Instruments Act. 14. Before arriving at any conclusion, a brief analysis of the law on the subject matter needs a brief reference. 14.1 In case of Sarojkumar Poddar v. State (NCT of Delhi) Anr., reported in (2007) 3 SCC 693, it is held by the Apex Court that for fixing vicarious liability of a person, requisite averments in the complaint is a statutory requirement. Here, in the complaint, to attract the provisions of Section 138 of the Negotiable Instruments Act, requisite averments are clearly made by the complainant, and therefore, at this stage, it cannot be said that requisite averments are not made by the respondent No. 2 in its complaint. 14.2 In case of Harshendra Kumar D. v. Rebatilata Koley Ors. reported in (2011) 3 SCC 351, it is held by the Supreme Court that an e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and whether the cheques in dispute were issued while the applicant was a Director and was responsible for the affairs of the accused Company or not. 14.5 This Court has taken a similar view in Criminal Misc. Application No. 16198/2011 holding that this Court cannot enter into facts of the case in dispute, while deciding application under Section 482 CrPC, relying upon the judgment of Malwa Cotton and Spinning Mills Limited v. Virsa Singh Sidhu Ors. reported in AIR 2008 SC 3273. 14.6 In case of Suryalakshmi Cotton Mills Limited v. Rajvir Industries Limited Ors., reported in 2008(13) SCC 678, Hon'ble Supreme Court has made following observations explaining parameters of jurisdiction of the High Court in exercising jurisdiction under Section 482 CrPC: 17. The parameters of jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the Code of Criminal Procedure is now well settled. Although it is of wide amplitude, a great deal of caution is also required in its exercise. What is required is application of well known legal principles involved in the matter. 22. Ordinarily, a defence of an accused although appears to be plausible should not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer under Section 482 CrPC. In the said case, post dated cheques were issued; as observed by Hon'ble Apex Court, postdated cheques is a well-recognized mode of payment and it depends on each case. 15. Considering the above stated legal settled principles of law, while dealing with a quashing petition, the Court has ordinarily to proceed with all the averments in the complaint, defence of the accused cannot be considered at this stage. The Court considering the prayer for quashing, does not adjudicate upon the disputed questions of fact. Therefore, the question has to be answered in favour of the respondent No. 2 and against the applicant. Accordingly, this Court did not find any merits in this petition, therefore, the same is dismissed. Ad interim relief stands vacated. Rule nisi discharged with no order as to costs. 16. As a parting note, it needs a mention here that this Court has not gone into the merits of the matter and has only gone into the aspect of its entertainability for quashing the impugned complaint qua the applicant herein, and therefore, the applicant will at liberty to raise all the available contentions before the trial Court, which shall be gone into an ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
