IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE JURISDICTION CRIMINAL APPLICATION NO.706 OF 2011 WITH CRIMINAL APPLICATION NO.452 OF 2011 Mr. Nikhil Merchant -- APPLICANT V/s. State of Maharashtra & Anr. -- RESPONDENTS Mr. A.P. Mundargi, Sr. Advocate i/b. Mr. Ashish S. Chavan for Applicant. Mr. D.R. More, APP for State/R.No.1. Mr. Yashpal Thakur i/b. M/s. Paras Kuhad & Asso. for Resp. No.2. CORAM : K.U. CHANDIWAL, J. DATE : 11th OCTOBER 2011 P.C. 1. Heard finally. 2. These applications are moved by original accused Nos. 6,7 and accused No.5 respectively. 3. Financial facilities were availed by M/s.Tanaaya Gems & Jewelery Exports Ltd. (in short TGJE Ltd.) from S.B.I. Global Factors Ltd. erstwhile known as Global Trade Finance Ltd.(in short GTFL). In discharge of said liabilities which was initially of 15 Crores, cheques covering an amount of Rs.9 crores were issued. The cheques on presentation to the banker were dishonoured followed by statutory notice non compliance of them, initiated in prosecuting accused applicant and other Directors vide C.C. No.822/SS/2010 before the learned Metropolitan Magistrate, 12th Court, Mumbai. The learned Judge issued process by order dated 21st January, 2011. 4. The accused applicants have challenged said order. The basic contention raised by the Senior Counsel revolves to : a) accused Nos.5,6 & 7 have resigned from the Company well in advance prior to the issue of Cheque dated 15th October, 2009, consequently, they will not be liable to meet claims and assertions in the complaint petition; b) the complaint Petition as a whole does not indicate the specific role attributed to the accused applicants in the transactions. According to learned Counsel, merely describing the applicant as Directors, would not be enough, without there being anything more averred in respect of particular role in the transaction by the accused applicant. The learned Senior Counsel reiterated, the complaint proceeds to reproduction of the section to fix liability without any averment as to what role the accused applicant have played while dealing with the complainant (GTFL). 5. This Court has already taken a view in the criminal Writ Petition No.1657 of 2011 and group matters and by order dated 28th September, 2011 did not accede to the theory of resignation as propounded by those applicants. The theory of resignation now, accelerated by the applicants, in the fact situation and in the light of earlier observations by this Court in the order dated 28th September, 2011, does not call for reconsideration. This Court has already observed that it is for the accused applicant to establish factum of resignation, to have been flashed well in advance prior to issuance of cheque and that such resignation has been appropriately accepted by the Registrar of Companies. These aspect are by way of defence, and needs evidence, particularly, when it is a disputed question of fact. 6. Going by the complaint, it is seen that in response to the statutory notice issued upon the applicants a reply was flashed through advocate dated 4th May, 2010, this reply has been dealt with by the complainant by their further rejoinder, dated 28th May, 2010, wherein GTFL has denied the assertions of the accused applicant to have resigned from the affairs of the company. 7. Another feature in the matter is, if one looks to the pleadings in the complaint as reflected in paragraph 2, 6, 8 in terms, the complainant GTFL has informed about role of the accused applicant and as to how they have connived in commission of offence in the capacity as Director or authorised signatory of accused No.1 company. The factum of resignation is disputed and denied in paragraph 8 of the Petition, giving additional reference to the aforementioned letter dated 28th May, 2011. 8. The resolution dated 14th June, 2007 by which the facilities availed from GTFL also refers about authority vested in Gautam G. Mehta, Smt. Charu G. Metha, the accused No.2 or accused no.3 in the petition. The company resolution, incorporate that it was the act unanimously dealt with by the Company and its Director, including present applicant to avail financial facilities of Rs. 15 crores from GTFL. Owing to such resolution dated 14th June, 2007, the financial facilities were extended to the accused applicant or to the Company, (accused No.1.) 9. My attention is also invited at Page 31 exemption application was moved by the present applicant dated 7th May, 2011 wherein they have indicated their status to be Directors and did not dispute or raise theory of resignation as has been canvassed before this Court. 10. Taking these aspects into consideration and the view taken by this Court in earlier two petitions referred above including in the Criminal Application No.910 of 2011 dated 8th September, 2011, I do not see any merits in both the applications consequently, both the applications dismissed. 8. Heard. The stay granted earlier is extended till, 28th November, 2011. [ K.U. CHANDIWAL, J. ]