Madhya Pradesh High Court
Devang Kumar vs Maloo Indistries A Registered ... on 17 September, 2019
Author: Sunil Kumar Awasthi
Bench: Sunil Kumar Awasthi
1
THE HIGH COURT OF MADHYA PRADESH:BENCH AT INDORE
M.Cr.C.No.20395/2019
Indore dated 17/09/2019
Shri Ajay Bagadiya, learned counsel for the
applicant.
Shri A.K. Sethi, learned Senior Counsel with Shri
Chetan Jain, learned counsel for the respondents.
ORDER
The applicant has preferred this petition under Section 482 of the Cr.P.C. for quashment of Criminal complaint bearing No. 390/2019 registered against the applicant and other co-accused persons, vide order dated 09/01/2019 passed by Judicial Magistrate First Class, Indore for the commission of offence punishable under Section 138 of the Negotiable Instruments Act, 1881.
2. Briefly stated facts of the case are that respondent firm has filed a complaint against the applicant and other accused persons alleging that the present applicant is one of the Director of Ms. Vearit Global Limited, which is a company registered under the Companies Act, 1956 having its registered Office at Cricent tower, AGC Bose Road, Kolkata. The accused Nos. 2 to 7 and 12 to 17 are the Directors of the accused No.1/Company. Accused No.8-Anil Nayar is the Chief Executive Officer, accused Nos. 9 and 10 namely, Hemand Ambekar and A.K. Kawadiya are the Mangers of the Company. Accused No. 11-B.S. Suryavanshi is the account in-charge of the accused No.1/Company; whereas accused No.6 is the authorized signatory of the Company. Hence, thereby all the aforesaid persons are 2 THE HIGH COURT OF MADHYA PRADESH:BENCH AT INDORE engaged in day to day affairs of the accused No.1/Company and therefore, they all are severally and jointly liable for each and every transactions of the accused No.1/Company. Accused No.1/company manufactures yarn and they purchased cotton bales as well as raw material for the said manufacturing process. To procure the cotton bales, the accused No.1/company directly or through the broker placed certain order for purchase and in pursuance of the said purchase order, vide several invoices, different quantity of bales in the different lots were supplied to the accused No.1/Company. Company issued cheque bearing No.046421 dated 06/08/2018 worth Rs.09,04,642/-, cheque No.046422 dated08/08/2018 amounting to Rs. 10,48,941/- and cheque No. 082108 dated 30/09/2018 for Rs.25,00,000/- for payment of the cotton bales. These cheques on presentation were dishonoured by the bank with a remarks "insufficient funds" and "Exceeds Arrangement". Thereafter, the complainant send a notice to the accused No.1/Company for payment of the cheque amount, however, the company did not pay the cheque amount to the complainant and gave a false reply contending that the aforesaid cheques were not issued under any legal recoverable debt or liability. Since the entire accused persons were Directors/Office bearers/ signatories of the accused No.1/company are jointly and severally liable for the liabilities that arisen due to dishonor 3 THE HIGH COURT OF MADHYA PRADESH:BENCH AT INDORE of the cheques. Accordingly, a complaint under Section 138 of the Negotiable Instruments Act, 1881 has been filed by the complainant before the court of Judicial Magistrate First Class, Indore, whereby the learned Judicial Magistrate First Class, Indore, vide order dated 09/01/2019 took the cognizance against the applicant and other accused persons for the commission of offence punishable under Section 138 of the NI Act, 1881 and summons were issued against them.
3. Arguments canvased by the learned counsel for the applicant is that it is evident from the documents filed alongwith the petition is that the present applicant was not a director at the time, when these cheques were issued by the accused No.1/Company or any of the person connected with the said company. Infact, the present applicant resigned from the post of Director of the company on 12/03/2018, which is much prior to the issuance of the cheques. Since the applicant has tendered his resignation on 12/03/2018 by submitting form No. DIR- 12 pursuant to Sections 7(1)(c), 168 and 170 of the Companies Act, 2013, therefore, his liability automatically comes to an end. This fact makes it clear that the present applicant was no way participated in the subject transaction, which took place for supply of the cotton bales to the accused No.1/company and also not responsible for any transaction, which the accused No.1/Company took 4 THE HIGH COURT OF MADHYA PRADESH:BENCH AT INDORE place with the complainant. It is also contended that the present applicant is no way connected with the alleged commission of any crime or dishonor of cheque, which was issued in discharge of any liability by the accused No.1/Company or its so called directors/office bearers/ signatories. Under these circumstances, learned counsel for the applicant submitted that registration of the complaint against the applicant is nothing but misuse of process of law and deserves to be quashed. Reference in this regard is placed on the decision of Apex Court, in the case of Saroj Kumar Poddar Vs. State (NCT of Delhi), (2007) 3 SCC 693 and in the case of Ashoke Mal Bafna Vs. Upper India Steel Mfg. & Engg. Co. Ltd., 2017 AIR (SC) 2854, in support of his contentions.
4. On the other hand, learned Senior counsel for the respondents opposed the application by contending that the defence taken by the applicant in the present petition filed under Section 482 of the Cr.P.C. is nothing but absolutely factual in nature, which is neither admitted by the complainant nor apparent on the face of the record. Whether the applicant had intimated the accused No.1/Company and whether there are any resolution accepting his resignation are matters in respect of which evidence has to be led, therefore, this question cannot be decided at this stage by invoking its extraordinary powers conferred under Section 482 of the Cr.P.C. Under these 5 THE HIGH COURT OF MADHYA PRADESH:BENCH AT INDORE circumstances, he prays for dismissal of the petition.
5. From the perusal of the complaint, it appears that there are allegation against the directors concerned about their position in the accused No.1/Company and there are specific averments mentioned in the complaint regarding the position of all accused persons in the said company. Therefore, the judgments relied by the applicant are not attracted in the facts and circumstances of the present case. Although, the applicant has taken a defence that he has already resigned from the accused No.1/company on 12/03/2018 i.e. much prior to the date of issuance of the cheques in question. The defence taken by the applicant in the present petition filed under Section 482 of the Cr.P.C. is nothing but absolutely factual in nature, which is neither admitted by the complainant nor apparent on the face of the record.
6. In the case of Malwa C & S Mills Ltd. Vs. Visra Singh Sindhu & Ors., 2009(I) MPJR (SC) 60 , the Hon'ble apex court has observed in para 6 as follows:-
"6. As rightly contended by learned counsel for the appellant factual disputes are involved. What was the effect of delayed presentation before the Registrar of Companies is essentially a matter of trial. Whether respondent No.1 had intimated the company and whether there was any resolution accepting his resolution are matters in respect of which evidence has to be led. Therefore, the High Court was not justified in its view. "6
THE HIGH COURT OF MADHYA PRADESH:BENCH AT INDORE
7. In the case Padal Venkata Rama Reddy V. Kovvuri Satyanarayana Reddy, (2011) 12 SCC 437, the Hon'le supreme Court explaining the scope of Section 482 of the Code, has observed, in para 32 as under:-
"32. It would not be proper for the High Court to analyse the case of the complainant in the light of all the probabilities in order to determine whether conviction would be sustainable and on such premise arriving at a conclusion that the proceedings are to be quashed. In a proceeding instituted on a complaint, exercise of inherent powers to quash the proceedings is called for only in a case in which complaint does not disclose any offence or is frivolous, vexatious or oppressive. There is no need to analyse each and every aspect meticulously before the trial to find out whether the case would end in conviction or acquittal ."
8. In view of the aforesaid discussion and on placing reliance on the judgment of Hon'ble apex Court in the case of S. Krishnamoorthy v. Chellammal, (2015) 14 SCC 559, this Court is of the considered view that present petition deserves to be and is hereby dismissed being devoid of any merits.
(S. K. Awasthi) Judge skt Santosh Kumar Tiwari 2019.09.26 18:13:57 +05'30'