WP.2968-10 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION No. 2968 OF 2010 WITH CRIMINAL WRIT PETITION No. 2969 OF 2010 WITH CRIMINAL WRIT PETITION No. 2970 OF 2010 WITH CRIMINAL WRIT PETITION No. 2971 OF 2010 WITH CRIMINAL WRIT PETITION No. 2972 OF 2010 WITH CRIMINAL WRIT PETITION No. 2973 OF 2010 WITH CRIMINAL WRIT PETITION No. 2974 OF 2010 WITH CRIMINAL WRIT PETITION No. 2975 OF 2010 Bhaskar Kashiram Choudhary ...Petitioner Vs. Govind Artani & Anr. ...Respondents *** Mr. D. S. Mhaispurkar i/b Umesh G. Yerunkar, for the Petitioners. Mr. S. H. Joshi, for Respondent No.1. Mr. P. S. Hingorani, APP for the Respondent-State. *** CORAM: V. M. KANADE J. DATE : DECEMBER 14, 2010 P.C. 1. The petitioners is challenging the order of issuance of WP.2968-10 - 2 - process passed by the learned J.M.F.C. Ulhasnagar, on the complaints filed by respondent No.1 for the offence punishable under S. 138 of the Negotiable Instruments Act. The learned counsel appearing on behalf of petitioner, firstly, submitted that in four cases, the petitioner had resigned before the issuance of cheques and in other four cases, he has resigned after the dishonour of cheques. He submitted that therefore, for the four case where the petitioner had resigned before the issuance of cheques, the provisions of S. 138 of the Act, was not attracted. He has relied on various documents which are annexed to the petition, in support of the said submission. Secondly, it is submitted that provisions of S. 138 and 141 of the Act are not attracted in the ordinary course, since the relevant averments are not made by the complainant in his complaints. In support of the said submission, the learned counsel for the petitioner has invited my attention to the complaints and averments made therein. He has relied on the judgment of the Apex Court in the case of – Sabitha Ramamurthy & Anr. vs. R. B. S. Channabasavaradhya [(2006)10 Supreme Court Cases 581] 2. On the other hand, the learned counsel appearing on behalf of respondent No.1 submitted that the writ petitions are not maintainable since the plea was already recorded and in some cases affidavit-in-lieu of WP.2968-10 - 3 - evidence was also filed and therefore, the trial has begun. He submitted that the complaints were filed in the year 2002; the process was issued and the plea was recorded on 22nd February, 2008. He further submitted that the applications for discharge were filed in 2009 before the learned Magistrate and thereafter the revisions were preferred and after the said revisions were dismissed, present writ petitions were filed. He submitted that the intention to file the present writ petitions was to protract the trials which are pending in the trial Court. He also submitted that the respondent No.1 is disputing the resignation of the petitioner and therefore, since this being the disputed question of fact, the said issue could not be decided by this Court at this stage. 3. In the first place, it is a well settled position in law that after the plea is recorded in a summary case and the affidavit-in-lieu is filed, this Court is not expected to interfere with the order of issuance of process. Admittedly, plea was recorded on 22nd February, 2008 and affidavit-in-lieu of evidence was filed thereafter. On this count alone the writ petitions will have to be dismissed. Even on merits there is no substance in the submissions made on behalf of the learned counsel for the petitioners, since the resignation of the petitioner/Director is disputed by the complainant. In view of the judgment of the Division Bench of WP.2968-10 - 4 - this Court, the said disputed issue has to be decided by the trial Court. The Division Bench in the case of – Suhas Bhand, Petitioner vs. State of Maharashtra & Anr. Respondents [ 2009(3) Bom.C.R. (Cri.) 784] in paragraph 33 has observed as under- “33. A reading of these judgments makes for the following legal propositions with regard to 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 resignation. Such accused cannot be discharged simplicitor upon production of certified copy of From 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 WP.2968-10 - 5 - 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.” The ratio of the this judgment, therefore, will squarely apply to the facts of the present case. Therefore, at this stage, it will not be possible for this Court to decide the disputed question of facts. 4. So far as the submissions of the learned counsel for the petitioner regarding the averments in the complaints are concerned, in my view, the complainant has made necessary averments in regard to commission of offence punishable under S. 138 read with S. 141 of the Negotiable Instruments Act, in paragraph 9 of the complaint, which reads as under - “. The complainant submits that the accused no.2 is the MANAGING DIRECTOR and the accused Nos. 3 to 7 are the DIRECTORS of the accused No.1 and are responsible for the affairs of the COMPANY, hence all the accused are jointly and severally liable to pay the amount of Rs.50,000/- towards the dishonour of the above said cheque to the complainant.” 5. I have perused the averments in the complaint, in which it is alleged that the complainant was appointed as FRANCHISEE agent of WP.2968-10 - 6 - the accused for conducting SUPER MARKET. The complainant accordingly deposited Rs.4,00,000/- and the accused issued receipt to the complainant. There was some correspondence between the parties and the accused informed that they were not interested in opening of the franchise outlet at the shop of the complainant at Ulhasnagar. Therefore, they issued 8 cheques of Rs.50,000/- each, which were dishonoured. After the complainant approached the accused, they informed that they were having financial difficulties and an assurance was given that the cheques would be encashed on the next occasion. However, thereafter also cheques were dishonoured. There is specific averment that accused No.2 is the Managing Director and accused Nos. 3 to 7 are the Directors of accused No.1 and are responsible for the affairs of the company and that they are jointly and severally liable to pay the said amount. The complaints if read as a whole, it makes out a case that the petitioner herein has acted in the capacity as the Director of the said Company. 6. Apart from that, as pointed out hereinabove, the accused is not expected to challenge the order of issuance of process at belated stage, i.e. after the trial has begun. In this case the complaints were filed in 2002; the plea of the accused therein was recorded on 22nd February, 2008. The petitioner instead of challenging the said order, directly WP.2968-10 - 7 - approached this Court, invoking jurisdiction under S. 482 of the Cr. P. C. In view of the judgment of the Apex Court in the case of - Adalat Prasad Vs. Rooplal Jindal, [2004 SCC 338], the application for discharge before the learned Magistrate is not maintainable. He thereafter filed the Revision Applications in the Sessions Court and during this time, the trial Court has already issued the process and affidavit-in-lieu of evidence was also filed. 7. Taking into consideration the over all view of the matter, this is not a fit case wherein this Court should exercise its jurisdiction under S. 482 Cr. P. C. All the writ petitions are therefore, dismissed. 8. The petitioner, however, appears to be a resident of Jalgaon. He is, therefore, exempted from appearing in the trial Court. His statement under S. 313 may be recorded through the advocate, provided he gives an undertaking to trial Court, as per the guidelines laid down by the Apex Court in the case of - Keya Mukherjee, Appellant vs. Megma Leasing Ltd. & Anr., Respondents [(2008) 8 Supreme Court Cases 447]. The learned Magistrate shall also follow the procedure laid down under S. 313(5) Cr. P.C. The exemption, however, granted by this Court shall be cancelled, if the petitioner’s advocate remained absent on two dates. 9. At this stage, the learned counsel for the petitioner requests WP.2968-10 - 8 - for extension of interim stay. This is a classic case where the petitioner had succeeded in protracting the trials. The complaints were filed in 2002; the plea of the accused therein was recorded in 2008. The affidavit in lieu of evidence has been filed in 2009. Thereafter the petitioner filed an application for discharge, though it is not maintainable before the Magistrate in view of the judgment of the Apex Court in the case of Adalat Prasad’s case (supra). Against this order, the petitioner preferred the revisions before the Sessions Court, which were dismissed and now, in 2010 these criminal writ petitions have been filed. In my view, this is not a fit case for grant of extension to the interim stay, not for a single day. Hence, the request for extension of interim stay is declined. The trial is expedited. The trial Court shall decide the complaints expeditiously, more particularly within three months. [ V. M. KANADE J.]