Telangana High Court
Shashin Ajit Kumar Desai vs State Of Telangana on 18 July, 2022
Author: D.Nagarjun
Bench: D.Nagarjun
THE HON'BLE DR. JUSTICE D.NAGARJUN
CRIMINAL PETITION No.6862 of 2018
ORDER:
This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure by the petitioner-accused No.9 for quash of the proceedings against him in C.C.No.2031 of 2022 on the file of learned VIII Metropolitan Magistrate at Manoranjan Complex, Nampally at Hyderabad registered for the offence under Section 138 of the Negotiable Instruments Act.
2. The facts in brief which necessitated the petitioner to file this criminal petition are as under:
a) The respondent No. 2 Company - M/s. K.C.J. Properties Private Limited has filed a complaint under Section 200 of the Code of Criminal Procedure against the petitioner - accused No. 9 and 11 others alleging that they have committed the offence punishable under Section 138 of the Negotiable Instruments Act. According to the complaint, accused No.1 represented by accused Nos.2 to 12, who are stated to be the Managing Directors, Directors, Executive Directors, CFO, Secretary, Authorized Signatories etc are responsible for the conduct of day to day business, have approached the respondent No. 2 -
Complainant Company and borrowed a sum of Rs.50 lakhs for 2 Accused No.1 Company on 25.05.2016 assuring that they would pay the said amount with interest @ 14.5% per annum payable on or before 23.08.2016.
b) Accused No.1 Company has executed demand pronote dated 25.05.2016 for a sum of Rs.51,60,890/- towards principal amount including interest in favour of the respondent No.2 - Complainant Company. Accused No.1 Company has issued two cheques bearing Nos.170404 and 170405 dated 22.08.2016 for Rs.50,00,000/- and Rs.1,60,890/- respectively drawn at Punjab National Bank, Large Corporate Branch, Ashram Road, Ahmedeabad, Gujarat. Both the cheques were presented in the bank and they were returned dishonoured under the caption "Funds Insufficient" vide memo dated29.08.2016.
c) The respondent No. 2 - Complainant Company has issued legal notice dated 10.09.2016 asking accused No.1 and others to pay the money under the cheques within a period of 15 days from the date of receipt of the notice. The notice was received on 12.09.2016 and accused have given false and frivolous replies denying the allegations. The respondent No.2 - Complainant Company has filed a complaint before the learned VI Additional Chief Metropolitan Magistrate, Nampally at 3 Hyderabad under Section 138 of the Negotiable Instruments Act. Cognizance of this case is taken against accused Nos.1 to 12 including the petitioner - accused No.9. Aggrieved by the same, the petitioner - accused No. 9 has filed the present criminal petition mainly on the following grounds:
i) The petitioner-accused No. 9 has resigned from Accused No. 1 Company on 06.11.2015 much before the date of alleged offence i.e., on 25.05.2016.
ii) Respondent No. 2 - Complainant Company has not mentioned the specific role of petitioner - accused No.9 in accused No. 1 company.
3. Heard learned counsel for the petitioner and respondent No. 2 and perused the record.
4. Now the point for determination is:
"Whether the proceeding against petitioner/accused No.9 in C.C.No.2031 of 2022 on the file of learned VIII Metropolitan Magistrate at Manoranjan Complex, Nampally at Hyderabad, can be quashed under Section 482 of the Code of Criminal Procedure?
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5. The criminal petition is filed to quash the proceedings in C.C.No.2031 of 2022 against the petitioner - accused No. 9 only on the ground that as on the date of alleged offence, he was not the Director of accused No.1 company as he has resigned from the Company on 06.11.2015 and thereby he cannot be made liable for the offence alleged against him. There is no dispute that Accused No.1 Company has borrowed Rs.50 lakhs from respondent No.2-de-facto complainant on 25.05.2016. On 29.08.2016 the cheques were returned dishonoured with an endorsement that there were no sufficient funds. Therefore, the alleged offence has taken place on 29.08.2016.
6. The petitioner has filed copy of Form DIR - 12, which shows that the petitioner - accused No.9 by name Shashin Ajitkumar Desai Director of Accused No. 1 Company has resigned under Section 168 of the Companies Act with effect from 06.11.2015. The petitioner has also filed copy of the resignation letter dated 06.11.2015 wherein the petitioner has stated that on account of personal and unavoidable circumstances, he is resigning from the post of Director with immediate effect. The respondent No. 2 - Complainant Company has not disputed the FORM DIR - 12 and the resignation letter filed by the petitioner - accused No.9. 5 Further, the petitioner has also filed copy of the reply notice dated 15.09.2016 given by accused No.1 Company, wherein at Para No.6, it is mentioned that petitioner - accused No.9 is no longer affiliated to Accused No. 1 Company.
7. Considering the above facts and circumstances, it is clear that since the petitioner - accused No. 9 has already resigned from the Accused No.1 Company much before the alleged dishonour of the cheque on 29.08.2016, liability under Section 138 of the Negotiable Instruments Act cannot be fastened on the petitioner - accused No.9. Since on the face of the record, it is clear that the petitioner - accused No.9 was not at all connected with the accused No.1 Company as on the date of alleged offence, he cannot be roped in as accused, snf continuation of the proceedings against the petitioner - accused No. 9 in C.C.No.2031 of 2022 on the file of learned VIII Metropolitan Magistrate at Manoranjan Complex, Nampally at Hyderabad would amounts to abuse of process of law.
8. Accordingly, the Criminal Petition is allowed and thereby the proceedings against the petitioner - accused No. 9 in C.C.No.2031 of 2022 on the file of learned VIII Metropolitan 6 Magistrate at Manoranjan Complex, Nampally at Hyderabad are hereby quashed.
As a sequel, pending miscellaneous applications, if any, shall stand closed.
_____________________ DR. D.NAGARJUN, J Date: 18.07.2022 AS