Bombay High Court
Salil Dinkarrai Gandhi vs Osmanabad District Central on 6 May, 2014
Author: A.I.S. Cheema
Bench: A.I.S. Cheema
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.209 OF 2013
Salil Dinkarrai Gandhi,
A-II/13 Gold Coin Co-op. H.S. Ltd.,
Tardeo, Mumbai 400034
...APPLICANT
(Orig. Accused No.11)
VERSUS
1) Osmanabad District Central
Co-operative Bank Ltd.,
H.O. Osmanabad through its
Managing Director
Shri Shrimant Rangrao Sonwane,
Age-60 years, Occu:Service,
R/o-Osmanabad,
Tq. & Dist-Osmanabad,
2) The State of Maharashtra,
...RESPONDENTS
WITH
CRIMINAL APPLICATION NO.210 OF 2013
Vijaykumar Himmatlal Modi,
Age-56 years, Occu:Service,
R/o-B/504, Akshar Apartment,
Iraniwadi No.3, Kandivali (West),
Mumbai 400067
...APPLICANT
(original Accused No.12)
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VERSUS
1) Osmanabad District Central
Co-operative Bank Ltd.,
H.O. Osmanabad through its
Managing Director
Shri Shrimant Rangrao Sonwane,
Age-60 years, Occu:Service,
R/o-Osmanabad,
Tq. & Dist-Osmanabad,
2) The State of Maharashtra,
...RESPONDENTS
WITHig
CRIMINAL APPLICATION NO.586 OF 2013
Manoj @ Mike s/o Ambalal Shah,
Age-68 years, Occu:Retired,
R/o-260, 17th Cross Road,
Sadashivnagar,
Bangalore.
...APPLICANT
(original Accused No.6)
VERSUS
1) Osmanabad District Central
Co-operative Bank Ltd.,
H.O. Osmanabad through its
Managing Director
Shri Shrimant Rangrao Sonwane,
Age-60 years, Occu:Service,
R/o-Osmanabad,
Tq. & Dist-Osmanabad,
2) The State of Maharashtra,
...RESPONDENTS
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3
...
Shri R.R. Mantri Advocate h/f. Shri S.S.
Manale Advocate for Applicants in all the
Applications.
Shri V.D. Sapkal Advocate h/f. Shri L.C.
Patil Advocate for Respondent No.1 in all
the Applications.
Mrs. S.G. Chincholkar, A.P.P. for Respondent
No.2 in all the Applications.
...
CORAM: A.I.S. CHEEMA, J.
DATE OF RESERVING JUDGMENT : 28TH APRIL,2014.
DATE OF PRONOUNCING JUDGMENT: 6TH MAY, 2014
COMMON JUDGMENT :
1. Heard. Admit. Heard finally, with the consent of learned counsel for the respective parties.
2. These are Criminal Applications filed under Section 397 read with Section 482 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C."), by Salil Dinkarrao Gandhi (original Accused No.11), Vijaykumar Himmatlal Modi ::: Downloaded on - 06/05/2014 23:52:30 ::: cra209.13 4 (original Accused No.12) and Manoj @ Mike Ambalal Shah (original Accused No.6), against whom the Chief Judicial Magistrate, Osmanabad issued process in S.C.C. No.2702 of 2002 in complaint filed by Respondent No.1 - Osmanabad District Central Co-operative Bank Ltd. (hereafter referred as "complainant"). The complaint has been filed arraying M/s. Home Trade Ltd. (hereafter referred as "Company"), a public limited Company through its Manager/Secretary as Accused No.1. There are 12 Accused in the complaint under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881 (hereafter referred as "Act").
3. These Applicants-Accused had filed Criminal Revision Application Nos. 16 of 2003, 14 of 2003 and 9 of 2003 respectively, which all came to be rejected by Ad-hoc Additional Sessions Judge-1, Osmanabad vide Judgments dated 22nd October, 2012 and hence these Criminal Applications.
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4. These Criminal Applications are taken up for disposal by Common Judgment as they contain similar averments and reliance is being placed on same documents and the arguments are also common.
5. Unless mentioned otherwise, I will refer to the documents from the record of Criminal Application No.209 of 2013.
6. Succinctly put, the grievances raised by the Applicants are as under:-
. The complainant has filed complaint under Section 138 of the Act claiming that the complainant Bank had credited an amount of Rs.30 Crores in the account of Accused No.1 Company to procure Government Securities. Although the amount was paid, Government Securities were not procured and hence complainant persuaded Accused No.1 Company and the Accused No.1 issued cheque on ::: Downloaded on - 06/05/2014 23:52:30 ::: cra209.13 6 20th April 2002, in favour of the complainant Bank.
The cheque got dishonoured and the complaint has been filed contending that Accused No.1 along with Directors - Accused Nos. 2 to 12, have committed offence under Section 138 of the Act.
The Chief Judicial Magistrate recorded statement of the complainant and process was issued on 19th December 2002, without considering that the complainant failed to make out the case against Accused Nos. 2 to 12.
. In the Revision, the order was challenged on the ground that Applicants Salil Gandhi and Vijaykumar Modi were appointed as Additional Directors of the Company on 15th May 2001, under Section 260 of the Companies Act and they could continue as such till the first Annual General Meeting (for short "A.G.M."), which took place on 29th September 2001, and thereafter they did not sign Form No.29 and they were not continued as Additional Directors. For Applicant Manoj Shah, it ::: Downloaded on - 06/05/2014 23:52:30 ::: cra209.13 7 was claimed that he was I.T. Professional and the Company wanted his consultancy services and so he was appointed as Non Executive Director of the Company in January, 2000. Applicants claimed that they were not involved in the day to day affairs of the Company. Reliance was placed on the orders passed by the Securities And Exchange Board of India (for short "SEBI"), where it has been held that the Applicants were not involved in the day to day affairs of the Company. The Applicants claimed that in other matters under Section 138 of the Act filed against them with reference to the above Company in Gujarat, the proceedings against the Applicants were quashed.
. The Applicants claimed that they could not be treated as officers in default and subsequent to the A.G.M. dated 29th September 2001, they seized to be Directors of the Accused No.1 Company. Thus, the Applicants claimed that they deserve to be discharged in the complaint.::: Downloaded on - 06/05/2014 23:52:30 :::
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7. Respondent No.1 - original complainant has filed affidavit-in-reply and opposed the Applications claiming that the Applicants were Directors and were involved in day to day working and the process was rightly issued in the complaint.
8. I have heard learned counsel for both sides. Learned counsel for Applicants submitted that the Applicants were Non Executive Directors.
He referred to Corporate Governance Report (Exhibit G - Criminal Application No.209 of 2013) to show that in the concerned Report the present Applicants were referred as Non Executive Directors. Reference was made also to the Annual Report 2000-2001 (Exhibit H - Criminal Application No.209 of 2013) to submit that the notice in the Annual Report mentioned that Applicant Shri Salil Gandhi was Additional Director and his term was expiring at the A.G.M. The learned counsel ::: Downloaded on - 06/05/2014 23:52:30 ::: cra209.13 9 referred to Item No. (6) in the notice. Reference was made to Item No. (8), where Applicant Vijaykumar Modi was also shown as Additional Director and that his term was expiring at the A.G.M. dated 29th September, 2001. The counsel referred to Note No. (10), where it was mentioned that Applicant Manoj Shah had offered himself for re-appointment. According to the learned counsel, after the meeting, these Applicants did not execute Form No.29 as required by Section 264(2) of the Companies Act, 1956 and thus they would automatically seize to be Directors and thus it is argued that these Applicants were no more concerned with the Company when alleged offence took place. Learned counsel submitted that the cheque in question was issued on 20th April, 2002 and the same got dishonoured on 23rd April, 2002.
It is claimed that the Applicants were no more concerned and they should be discharged.
9. Learned counsel for the Applicants ::: Downloaded on - 06/05/2014 23:52:30 ::: cra209.13 10 further relied on the order of SEBI (Exhibit E
-Criminal Application No.209 of 2013) where, in Para 5.4, it was found by the Whole Time Member of SEBI that the Applicant Manoj Shah was Non Executive Director and that Applicants Vijaykumar Modi and Salil Gandhi were Additional Directors.
10. It has been argued by the learned counsel for Applicants that the present complaint does not comply with the requirements of Section 141 of the Act. Section 141 of the Act reads as under:-
"141. Offences by the Companies.-(1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was incharge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly;::: Downloaded on - 06/05/2014 23:52:30 :::
cra209.13 11 Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence:
Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter.
(2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part ::: Downloaded on - 06/05/2014 23:52:30 ::: cra209.13 12 of, any director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation.- For the purposes of this section,-
(a) "company" means any body corporate and includes a firm or other association of individuals; and
(b) "director", in relation to a firm, means a partner in the firm."
11. Referring to the above Section, the learned counsel for Applicants submitted that the present complaint does not contain the necessary averments required by the Section to make the present Applicants vicariously liable and thus, according to the learned counsel, the Applicants could not be proceeded against. Learned counsel referred to the Judgments of the Hon'ble Supreme Court in the matter of (I) S.M.S. Pharmaceuticals ::: Downloaded on - 06/05/2014 23:52:31 ::: cra209.13 13 Ltd. vs. Neeta Bhalla, reported in 2005 A.I.R. (S.C.) 3512, (II) Ramrajsingh vs. State of M.P. and another, reported in 2009(6) S.C.C. 729 (III) N.K. Wahi vs. Shekhar Singh and others, reported in 2007(9) S.C.C. 481, (IV) Sabitha Ramamurthy vs. R.B.S. Channabasavaradhya, reported in J.T. 2006 (12) S.C. 20. These Judgments were considered by the Hon'ble Supreme Court in the matter of National Small Industries Corp. Ltd. vs. Harmeet Singh Paintal and another, reported in (2010) 3 S.C.C. 330, and the Hon'ble Supreme Court, in Para 39, found that the following principles emerged with regard to Section 141 of the Act:-
"39. From the above discussion, the following principles emerge:
(i) The primary responsibility is on the complainant to make specific averments as are required under the laws in the complaint so as to make the accused vicariously liable. For fastening the ::: Downloaded on - 06/05/2014 23:52:31 ::: cra209.13 14 criminal liability, there is no presumption that every Director knows about the transaction.
(ii) Section 141 does not make all the Directors liable for the offence. The criminal liability can be fastened only on those who, at the time of the commission of the offence, were in charge of and were responsible for the conduct of the business of the company.
(iii) Vicarious liability can be inferred against a company registered or incorporated under the Companies Act, 1956 only if the requisite statements, which are required to be averred in the complaint/petition, are made so as to make accused therein vicariously liable for offence committed by company along with averments in the petition containing that accused were in-charge of and responsible for the business of the company and by virtue of their position they are liable to be proceeded with.::: Downloaded on - 06/05/2014 23:52:31 :::
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(iv) Vicarious liability on the part of a person must be pleaded and proved and not inferred.
(v) If accused is Managing Director or Joint Managing Director then it is not necessary to make specific averment in the complaint and by virtue of their position they are liable to be proceeded with.
(vi) If accused is a Director or an Officer of the company who signed the cheques on behalf of the company then also it is not necessary to make specific averment in complaint.
(vii) The person sought to be made liable should be in-charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a Director in such cases."
12. Relying on the above, it was argued that merely being Director is not enough and it is ::: Downloaded on - 06/05/2014 23:52:31 ::: cra209.13 16 necessary to show specific averments regarding accused being in-charge of and responsible for the conduct of the business of the company, at the relevant time.
13. Per contra, learned counsel for the Respondent- complainant has taken me through the averments in the complaint to demonstrate that there were sufficient and complete particulars as required by the law. It was argued that the cheque was issued on 20th April, 2002 which got dishonoured on 23rd April, 2002 and the complaint was filed in the year 2002. According to the learned counsel, the order of SEBI is subsequent, which was passed in the year 2006, for transactions of the Accused No.1 Company which related to acts of the Company in the year 1999 and thus, according to the learned counsel the findings of SEBI are not helpful in the present complaint, which was filed earlier. Counsel mentioned that the order of SEBI in Para 1.1 shows ::: Downloaded on - 06/05/2014 23:52:31 ::: cra209.13 17 that Accused No.1 Company had come out with an offer for sale of equity shares aggregating to Rs.29.95 Crores during October, 1999. Offer for sale opened on October 27, 1999 and closed on October 30, 1999. Para 1.2 mentions that shares of the Accused No.1 Company were listed on Pune Stock Exchange and Bangalore Stock Exchange and trading started on November 15, 1999. It was seen that the promoters were holding 75% of the post-issue capital of Accused No.1 Company under the category promoter's holding. From the details submitted by stock exchange and registrar to the offer for sale, it was observed that certain individuals made applications for large quantity of shares in the offer for sale of shares of Accused No.1 company. The counsel submitted that these observations of the SEBI can be found in Para 1.2.
It was argued that Para 1.3 shows that for such reason an investigation was conducted into the offer for sale, subsequent listing in Bangalore Stock Exchange and Pune Stock Exchange and trading ::: Downloaded on - 06/05/2014 23:52:31 ::: cra209.13 18 in the shares by SEBI. It was argued that in this context the SEBI passed the order concerned and thus, according to learned counsel the order does not relate to acts of Accused No.1 Company with reference to April, 2002 when offence in the present matter took place and thus the findings of the SEBI are not relevant.
.
As regards the Judgments of the High Court of Gujarat relied by the Applicants, it was argued by the learned counsel for Respondent-
complainant that those Judgments cannot be relied on, as it is not known regarding what period those matters under Section 138 of the Act in Gujarat referred to. The present matter will have to be decided keeping in view facts of the present matter, according to the counsel.
. Learned counsel for Respondent-
complainant further referred to the Annual Report 2000-2001 of the Company and it was argued that ::: Downloaded on - 06/05/2014 23:52:31 ::: cra209.13 19 the Annual Report 2000-2001, where notice was issued for the meeting dated 29th September 2001, the notice has explanatory statement attached, that present Applicants Salil Gandhi and Vijaykumar Modi were appointed as Additional Directors of the Company pursuant to Section 260 of the Companies Act, 1956 and that the Company had received notices along with prescribed deposits from members of the Company proposing the candidatures of Applicants Salil Gandhi and Vijaykumar Modi for the office of Director and accordingly Directors recommended those resolutions for approval of the members. It is also recorded in the explanatory statements that Applicants Salil Gandhi and Vijaykumar Modi were interested in the resolution pertaining to their appointment and no other director is interested in the resolution. Learned counsel for Respondent-
complainant referred to Item Nos. (6) and (8) of the notice and submitted that the resolutions proposed were to appoint Applicants Salil Gandhi ::: Downloaded on - 06/05/2014 23:52:31 ::: cra209.13 20 and Vijaykumar Modi as Directors of the Company and Note No. 10 shows that Applicant Manoj Shah offered himself for re-appointment. Learned counsel thus, submitted that in this context, if the first page of the Annual Report (Page 65-C -
Criminal Application No.209 of 2013) is perused, it clearly shows that all these three present Applicants were appointed as Directors on the Board and thus, according to the learned counsel for Respondent-complainant, the resolutions had been accepted and these Applicants had became Directors in the meeting dated 29th September 2001, which is clear from the Annual Report 2000-2001.
It was argued that the submission that these Applicants did not fill Form No.29 as claimed, would be a matter of defence which can be looked into at the appropriate stage. Argument is that from the present record, it cannot be concluded that there is no ground for proceeding against the Applicants. It was further argued that Annual Report 2000-2001 shows Applicant Vijaykumar Modi ::: Downloaded on - 06/05/2014 23:52:31 ::: cra209.13 21 signing various documents as Director. It was also argued that the Corporate Governance Report shows that Applicants Salil Gandhi and Vijaykumar Modi to be part of various committees, as can be seen in the document and it was recorded in Para 7 that Board of Directors met fifteen times which was well attended to. Thus, it is argued for the Respondent-complainant that the documents filed and relied on by the Applicants themselves show that the Applicants were actively involved in the affairs of the Company and the present matter being on preliminary stage, there is sufficient material to proceed against the Applicants.
. Learned counsel for Respondent-
complainant further argued that the Rulings relied on by the Applicants regarding averments cannot be disputed, but according to the learned counsel, there is sufficient compliance in the present matter. Learned counsel for Respondent-complainant relied on the case of N. Rangachari vs. Bharat ::: Downloaded on - 06/05/2014 23:52:31 ::: cra209.13 22 Sanchar Nigam Limited, reported in A.I.R. 2007 S.C. 1682(1), where it was observed in Para 13 and 14 as under:-
"13...... Therefore, a person in the commercial world having a transaction with a company is entitled to presume that the directors of the company are incharge of the affairs of the company.
If any restrictions on their powers are placed by the memorandum or articles of the company, it is for the directors to establish it at the trial. It is in that context that Section 141 of the Negotiable Instruments Act provides that when the offender is a company, every person, who at the time when the offence was committed was incharge of and was responsible to the company for the conduct of the business of the company, shall also be deemed to be guilty of the offence along with the company. It appears to us that an allegation in the complaint that the named accused are directors of the company itself would usher in the element of their acting for ::: Downloaded on - 06/05/2014 23:52:31 ::: cra209.13 23 and on behalf of the company and of their being incharge of the company."
"14. A person normally having business or commercial dealings with a company, would satisfy himself about its creditworthiness and reliability by looking at its promoters and Board of Directors and the nature and extent of its business and its Memorandum or Articles of Association. Other than that, he may not be aware of the arrangements within the company in regard to its management, daily routine, etc. Therefore, when a cheque issued to him by the company is dishonoured, he is expected only to be aware generally of who are incharge of the affairs of the company. It is not reasonable to expect him to know whether the person who signed the cheque was instructed to do so or whether he has been deprived of his authority to do so when he actually signed the cheque. Those are matters peculiarly within the knowledge of the company and those in charge of it,. So, all that a payee of a cheque that is ::: Downloaded on - 06/05/2014 23:52:31 ::: cra209.13 24 dishonoured can be expected to allege is that the persons named in the complaint are in charge of its affairs. The Directors are prima facie in that position."
. Relying on the above, it was argued on behalf of the Respondent-complainant that the contentions being raised by the Applicants are defences which they can prove at the time of trial.
14. Having heard counsel for both sides, I find substance in the arguments raised by the learned counsel for the Respondent-complainant.
Annual Report 2000-2001 shows that the Applicants were proposed to be Directors in the meeting dated 29th September, 2001 and accordingly were appointed as Directors, which can be seen from Page 65-C in the record of Criminal Application No.209 of 2013.
The Corporate Governance Report relied on by the Applicants dated August 14, 2001 shows the ::: Downloaded on - 06/05/2014 23:52:31 ::: cra209.13 25 Applicants Salil Gandhi and Vijaykumar Modi, although at that time referred as Non Executive Directors, were actively involved in various committees. They were in the Audit Committee as per provisions of Section 292-A of the Companies Act, 1956, as well as Remuneration Committee and Shareholders Grievances Committee. In the Annual Report 2000-2001 Applicant Vijaykumar Modi was shown signatory to various documents as Director.
15. As regards order passed by the SEBI, it was in the context of acts of the Accused No.1 Company of the year 1999. Learned counsel for the Applicants tried to show from Para 5.2 of the order of SEBI that the second phase referred in the order extended till 29th April 2002, and after considering the case of the Applicants it had been found that they were not involved in the decision making process or day to day administration of the Company, as can be seen from Para 5.4 of the order.
::: Downloaded on - 06/05/2014 23:52:31 :::cra209.13 26 . Looking to the arguments of the counsel for both sides with reference to order of SEBI, when the order is examined, it is quite clear that it related to the acts of the Company of the year 1999. What appears is that the Member of SEBI had investigation report before him and in that context in Para 2.3 referred to 7 Directors including present Applicants. The period of Applicant Manoj Shah extended upto 24th April, 2002. The cheque in the present matter got dishonoured on 23rd April, 2002. Order of SEBI shows in Para 3 that show cause notices were issued and replies were received. In the replies, the present Applicants raised similar grievances as are being raised in the present matter, that they were Non Executive Directors. At the time of oral hearing, it does not appear that these persons appeared before the Member. Para 5.2 of the order of SEBI shows that it divided the nature of transactions into two relevant phases in the ::: Downloaded on - 06/05/2014 23:52:31 ::: cra209.13 27 market manipulations. The first phase was from the time of offer of sale and ended on the date of listing of shares and continued till preliminary order of SEBI against Accused No.1 Company, which was passed on 29th April, 2002. (It appears that against the Accused No.1 Company, offence was registered on 8th May, 2002 vide Crime No.106 of 2002, after administrator was appointed on 4th May, 2002.) As regards second phase, Para 5.3 of the order of SEBI, reads as under:-
"5.3 The second phase of manipulations started when the scrip of HTL was traded in TSE and BgSE. After listing on the PSE, the price of scrip showed a sharp increase from November 19, 1999 to March 2000 rising from Rs.250/- to Rs.800/-. Similarly, there had been sharp increase in the price of scrip in BgSE where the price went up from Rs.275/- to Rs.825/- between December, 1999 and April, 2000. It was revealed that the sharp rise in the price of the scrip was attributed to circular trading in the shares of HTL ::: Downloaded on - 06/05/2014 23:52:31 ::: cra209.13 28 amongst members of PSE and BgSE. It was further exposed that the manipulation of the price was done through the employees of HTL who had a vicious nexus with the brokers of the concerned stock exchanges. From the statements of the said employees, it is learnt that some of the directors of the company devised the plan and they were behind the move of the employees who recruited brokers for the fraudulent trades. On an analysis of the submissions of the directors as stated above, it is noted that all of them were present in the Board of Directors of HTL during the second phase of manipulations when the price of the scrip was taken from Rs. 50/- to Rs.800/- by synchronized and scheming trades and the fact was not disputed by any of them."
(Emphasis supplied)
16. Thus, in the order of SEBI itself, for the second phase it was found that all the Directors mentioned in the order were present in the Board of Directors during the second phase of ::: Downloaded on - 06/05/2014 23:52:31 ::: cra209.13 29 manipulations. Of course, the order then refers to the defence of present Applicants that they were Non Executive Directors and in Para 6.2 the Member stated that in the absence of corroborative evidence for their involvement in the manipulations in the scrip, he was inclined to give them benefit of doubt. Thus, though they were active in the affairs of the Company, they got benefit on the plea of being Non-executive.
. Looking to such order, even if benefit of doubt has been given, keeping in view Para 5.3 of the order and present stage of the complaint, I do not think that it can be said that there is no material to proceed against the present Applicants.
17. If copy of the complaint is perused, the complainant pleaded in Para 2 that the Accused No.1 was public limited Company and that Accused No.2 was the Chairman, whereas Accused Nos.3 to 12 ::: Downloaded on - 06/05/2014 23:52:31 ::: cra209.13 30 were Directors of the Accused No.1 and that all the accused were in-charge of and have been responsible for conducting the business of the Accused No.1 in relation to subject matter of the complaint and the transaction under the offence.
In Para 4 of the complaint, it has been pleaded that on 31st January, 2002 Accused No.1 company offered to sell and deliver Government Securities to the complainant Bank as per the offer letter concerned and accordingly on 1st February, 2002 complainant Bank credited an amount of Rs.30 Crores from the account of complainant Bank in the account of Accused No.1 company in the Maharashtra State Bank. Pleadings are that the Accused No.1 at the instance of Accused Nos. 2 to 12 issued in favour of the complainant Bank the receipts as well as the contract notes in relation to the Government Securities which the accused undertook to sell to the complainant Bank. In Para 6 of the complaint, it has been averred that the Accused No.1, at the instance of Accused Nos. 2 to 12 had ::: Downloaded on - 06/05/2014 23:52:31 ::: cra209.13 31 issued Cheque No.695185 dated 20th April, 2002.
Para 10 shows that the complainant had issued statutory notice to all these Accused calling upon them jointly and severally to pay the complainant Bank. Para 12 of the complaint shows that to each of the accused, notices were sent. Para 11 of the complaint shows averments that Accused Nos. 2 to 12 are being prosecuted in their capacity as Directors/Office Bearers of the Accused No.1 Company and that notices were issued to all of them separately.
18. Keeping in view the observations of the Hon'ble the Supreme Court and provisions of Section 138 and 141 of the Act and considering the complaint and its verification, I do not find that there was any error in the issue of process. The Applicants are unable to show, at present stage, that the complaint cannot proceed against them.
The defences raised, may be proved at the time of trial. But at present stage, I find no ::: Downloaded on - 06/05/2014 23:52:31 ::: cra209.13 32 justification to discharge the Applicants. I do not find that the orders of Revisional Court, which have been challenged, require any interference.
19. For the reasons stated above, all the three Criminal Applications are rejected.
[A.I.S. CHEEMA, J.] asb/MAY14 ::: Downloaded on - 06/05/2014 23:52:31 :::