IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO. 1399 OF 2001. WRIT PETITION NO. 1399 OF 2001. WRIT PETITION NO. 1399 OF 2001. Puran Chand Soni. ..Petitioner. versus The State of Maharashtra & Anr. ..Respondents. WITH CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO. 1400 OF 2001. WRIT PETITION NO. 1400 OF 2001. WRIT PETITION NO. 1400 OF 2001. Puran Chand Soni. ..Petitioner. versus The State of Maharashtra & Anr. ..Respondents. WITH CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO. 1541 OF 2001. WRIT PETITION NO. 1541 OF 2001. WRIT PETITION NO. 1541 OF 2001. S.S. Bhardwaj. ..Petitioner. versus The State of Maharashtra & Anr. ..Respondents. WITH CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO. 1542 OF 2001. WRIT PETITION NO. 1542 OF 2001. WRIT PETITION NO. 1542 OF 2001. S.S. Bhardwaj. ..Petitioner. versus The State of Maharashtra & Anr. ..Respondents. .... Mr.K.S. Patil, for the Petitioner in Crim.W.P. No.1399/01, Crim.W.P.No.1400/01, Crim.W.P. No.1541/01 and Crim.W.P.No.1542/2001. Mr.Prakash Naik, for Respondent No.2 in Crim. W.P.No.1399/2001, Crim.W.P.No.1541/01 Mr.Y.S. Shinde, APP, for Respondent No.1, in Crim.W.P. No.1399/2001. Mr. Sanjog Parab, for Respondent No.2 in Crim. W.P.1400/01, Crim.W.P.No.1542/2001. .... CORAM CORAM CORAM : A.S. OKA, J. : A.S. OKA, J. : A.S. OKA, J. DATE DATE DATE : 15TH JULY,2008. : 15TH JULY,2008. : 15TH JULY,2008. ORAL JUDGMENT : 1. Heard Shri Patil appearing for the petitioner and Shri Naik appearing for the respondent. 2. The prayer in these petitions is for quashing the proceedings of a complaints bearing nos.705/S/97 and 706/S/97 filed by the second respondent under section 138 read with section 141 of the Negotiable Instruments Act, 1881. The petitioners in these petitions have been arraigned as accused in the complaint filed by the second respondent in their alleged capacity as Directors of the first respondent M/s. Mithila Steel Industries Limited. 3. The submission of the learned counsel appearing for the petitioner in these petitions is that on plain reading of the averments made in the complaint filed by the second respondent, in view of the law laid down by the Apex Court in the case of SMS Pharmaceuticals Limited v/s. Nita Bhalla & another, [2005(4) SC 1118], the process could not have been issued against the petitioners in these petitions. It is submitted that the petitioners had ceased to be the Directors of the first accused company. It is submitted that though the petitioners ceased to be the Directors after the cheque was issued, in view of judgment of this Court, dated 19th August 1998, in a case of H.M. Dave Mulshankar Dave v/s. M/s. Gitanjali Shah and Another, the complaint as against the petitioners will have to be quashed. He pointed out that the applicant in the said criminal application was also one of the accused in the said complaints filed by the second respondent. I have heard learned counsel appearing for second respondent who opposed the petitions. 3. It will be necessary to refer to averments made in the complaint filed by the second respondent. The only averment made against the petitioners in these petitions is found in paragraph no.1 of the complaint filed by the second respondent. The relevant averments read thus :- . "The complainant advanced a loan of Rs.15,00,000/- (Rupees Fifteen lacs only) on 24th April, 1995 to the Accused No.1 Company of which Accused Nos. 2 to 8 are Directors and are responsible for the day-to-day affairs of the Company, vide her cheque bearing No.881665 dated 24th April, 1995, drawn on ANZ Grindlays bank, Bhulbhai Desai Road, Breach Candy Branch, Bombay for a period of 3 months." . There are similar averments in both the complaints. . Thus, there is no specific averment made that on the date on which offence was committed by the first accused Company, the petitioners were incharge of and were responsible to the Company for the conduct of the business of the Company. In view of the legal position reiterated by the Apex Court in the case of S.M.S. Pharmaceuticals Ltd. (Supra), the petitions must succeed. 4. Accordingly, I pass following order :- . (1) Rule is made absolute in terms of prayer clause (a). It is however clarified that the order issuing process stands set aside only in so far as the petitioners in these petitions are concerned and the case will proceed as against other accused persons. No orders as to costs. [ A.S.OKA, J.] A.S.OKA, J.] A.S.OKA, J.]