1 WP1982.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION kj CRIMINAL WRIT PETITION NO.1982 OF 2010 Ragvinder Singh Rekhi ..Petitioner Vs State of Maharashtra & Ors. ..Respondents ---- Mr.Subodh Desai & Mr.Sandip Mahadik i/by Sushil D. Vyas for the petitioner. Mr.Yashpal Thakur i/by Paras Kuhud & Associates for the respondent no.2. Mrs.M.R.Tidake APP for the State. ---- Coram : V.M.KANADE,J Date : 11.10.2010. PC 1 Heard learned Counsel appearing on behalf of the petitioner and the learned Counsel appearing on behalf of respondent no.2. 2 WP1982.10.sxw 2 The petitioner is challenging the order passed by the learned Magistrate issuing process on the complaint filed by the respondent no.2 under Section 138 of Negotiable Instruments Act. The said order is challenged on two grounds. Firstly it is submitted that the petitioner has resigned as a Director w.e.f 18.1.2008. Reliance was also placed on the Form-32 annexed to the petition wherein it was stated that the resignation was accepted w.e.f 18.1.2008. It is submitted that therefore, the date on which the cheques were issued and thereafter when the complaint was filed on the dis-honoured of the said cheque, the petitioner was not a Director of the company and therefore, was not liable under the provisions of Section 138 read with 141 of Negotiable Instruments Act. In support of the said submission, reliance was placed on the judgment of the Division Bench of this Court in the case of Suhas Bhand Vs. State of Maharashtra & Anr. It is submitted that in the present case no document was produced to show the continuance of the accused as a Director of the Company after the date of notification and there was only oral denial about the resignation of the petitioner as a Director of the 3 WP1982.10.sxw Company. It was then submitted that there was no averments in the complaint regarding the specific role of the petitioner in the Company and therefore, it was submitted that he could not be prosecuted or made vicariously liable under the provisions of Section 141 of Negotiable Instruments Act. Reliance was placed on the judgment of the Apex Court in the case of National Small Industries Corp. Ltd., Vs. Harmeet Singh Paintal & Anr reported in 2010 Cr.L.J 1907. 3 On the other hand, learned Counsel appearing on behalf of the respondent no.2 submitted that the petitioner had personally interacted with the complainant for the purpose of obtaining this facility on behalf of the accused company. The factum of resignation was also disputed and denied. So far as 2nd ground is concerned, it was submitted that there was sufficient averments in paragraph nos.1, 4, 5 & 6 in the complaint and therefore, these averments clearly described the role of the petitioner in the day to day management of the company. 4 WP1982.10.sxw 4 After having heard both the Counsels, in my view, no case is made out by the petitioner for interfering with the order of issuance of process. So far as ground of resignation is concerned, Division Bench of this Court in the case of Suhas Bhand (supra), after going through various judgments of the Apex Court and other High Courts, has observed in paragraph-33 as under :- “33. A reading of these judgments makes for the following legal propositions with regard to the resignation of a Director of a registered Company. (i) If the accused in a criminal prosecution under Section 138 of the Negotiable Instruments Act produces a certified copy of Form No.32 certified by the ROC and there is no dispute of the factum of his resignation, the accused is entitled to be discharged from the prosecution. (ii) If his resignation is not accepted or admitted by the complainant upon production of the certified copy of Form No.32, the accused would have to prove the truth of the contents of the said certified copy i.e the factum of his 5 WP1982.10.sxw resignation. Such accused cannot be discharged simplicitor upon production of a certified copy of Form No.32. (iii) If the complainant produces any evidence showing the continuance of the accused as Director of the Company after the date of the resignation claimed by him as per the certified copy of Form No.32 produced by him, such accused cannot be discharged simplicitor upon production of such certified copy of Form No.32. He would have to lead evidence to prove the factum of his resignation. Similarly the complainant would be entitled to prove the factum of his continuing as Director. The trial under Section 138 read with Section 141 of the Negotiable Instruments Act would, therefore, proceed.” Perusal of the said observations of the Division Bench clearly reveal that the case of the petitioner was squarely fall under clauses-1 & 2 of paragraph-33 and therefore, it would not be possible to interfere with the order of issuance of process at this stage and the petitioner will have to prove the fact of resignation. 6 WP1982.10.sxw 5 So far as 2nd submission is concerned, perusal of the complaint clearly reveals that there are sufficient averments in the complaint showing the involvement of the petitioner in the day to day management of the Company. The following averments are made by the Complainant in the complaint :- 1. I say that the all Accused had approached us with a request for trade finance facility(ies) and accordingly the said facility has been granted by us to the Accused as per their request and requirement ; 2 I say that Accused No.1 is a Limited Company of which Accused No.8 is the Company Secretary & authorized signatory and Accused No.2 to 7 are the Directors of M/s.Temptation Foods Ltd. At all material time relevant and relating to the complaint Accused No.2 to 8 were and are in charge of and responsible for the conduct of business of the Accused No.1 and are also looking after the day to day affairs of the Accused No.1. It is further submitted that Accused No.2 to 8 with Accused No.1 are liable to be 7 WP1982.10.sxw prosecuted and/or connived in the commission of the present offence, in their capacity as Company Secretary, Directors & Authorised Signatory of the said Limited Company ; 3 I say that as narrated in para 4 Accused No.2 to 8 being responsible for the affairs of Accused No.1 i.e Limited Company are liable to be prosecuted for having committed a criminal offence in the event of failure on their part to comply with the requisitions contained in the statutory notice dtd.11/06/09, which was sent to them both under R.P.A.D & U.P.C. I say that notice was received by Accused No.4, 6 & 7 on 16/06/09, and I say that notice sent to Accused no.3, 5 & 8 were returned to us by postal authority with remark “Refused”, “Unclaimed”, “Intimation posted” on 16/06/09, 18/06/09, 19/06/09 respectively and notice sent to Accused no.1 & 2 we have neither received acknowledgment nor return envelop. However inspite of receipt of notice, the Accused have failed and neglected to make our payment under the above said dishonoured 8 WP1982.10.sxw cheques ; 4 I say that above Accused have thus committed an offence punishable u/s 138 r/w 141 of Negotiable Instrument Act ( as amended). Perusal of the aforesaid averments clearly reveals that the complainant has mentioned the specific role of the petitioner and had also stated that the accused no.2 was in charge of day to day affairs of the Company and therefore, the necessary ingredients for the offence under Section 141 of the Negotiable Instruments Act are specifically averred in the complaint. The ratio of the judgment in the case of National Small Industries Corp. Ltd., (supra) therefore, has been complied by the Complainant by making the necessary averments as observed by the Apex Court in the said case. No case is therefore, made out for interfering with the order of issuance of process. The trial is expedited. Criminal Writ Petition therefore, is dismissed. (V.M.KANADE,J)