1 l. IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE APPELLATE APPELLATE CRIMINAL JURISDICTION CRIMINAL JURISDICTION CRIMINAL JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT WRIT WRIT PETITION NO.2561 OF 2004 PETITION NO.2561 OF 2004 PETITION NO.2561 OF 2004 Jaiprakash Jaiprakash Jaiprakash Srivastava Srivastava Srivastava & anr .. Petitioners & anr .. Petitioners & anr .. Petitioners vs vs vs Promila Promila Promila Rajendra Rajendra Rajendra Kapoor & anr.. Respondents Kapoor & anr.. Respondents Kapoor & anr.. Respondents Mr.A.P.Mundargi,Sr.Counsel Mr.A.P.Mundargi,Sr.Counsel Mr.A.P.Mundargi,Sr.Counsel i.b i.b i.b M/s M.V.Kini & Co M/s M.V.Kini & Co M/s M.V.Kini & Co for for for Petitioners Petitioners Petitioners Ms.Promila Ms.Promila Ms.Promila Rajendra Rajendra Rajendra Kapoor,Respondent in person Kapoor,Respondent in person Kapoor,Respondent in person Mr.D.P.Adsule, Mr.D.P.Adsule, Mr.D.P.Adsule, APP for Respondent no.2. APP for Respondent no.2. APP for Respondent no.2. CORAM CORAM CORAM : : : B.H.MARLAPALLE, J B.H.MARLAPALLE, J B.H.MARLAPALLE, J DATED DATED DATED : : : 11th July, 2007 11th July, 2007 11th July, 2007 P.C. P.C. P.C. 1.1.1. Heard Mr.Mundargi learned Senior counsel for Heard Mr.Mundargi learned Senior counsel for Heard Mr.Mundargi learned Senior counsel for the the the petitioners. petitioners. petitioners. The complainant Ms.Promila Kapoor The complainant Ms.Promila Kapoor The complainant Ms.Promila Kapoor appears appears appears as party in person. Perused her written as party in person. Perused her written as party in person. Perused her written submissions submissions submissions placed before me. placed before me. placed before me. 2.2.2. The complainant has filed Criminal Case The complainant has filed Criminal Case The complainant has filed Criminal Case No.484/S No.484/S No.484/S of 1998 for an offence under section 138 of 1998 for an offence under section 138 of 1998 for an offence under section 138 of of of the Negotiable Instruments Act against the the Negotiable Instruments Act against the the Negotiable Instruments Act against the company company company namely M/s Indo French Biotech Enterprises namely M/s Indo French Biotech Enterprises namely M/s Indo French Biotech Enterprises Ltd Ltd Ltd having its registered office at 5, Bhaskar having its registered office at 5, Bhaskar having its registered office at 5, Bhaskar Mansion, Mansion, Mansion, 31, Sitladevi Temple Road, Mahim, 31, Sitladevi Temple Road, Mahim, 31, Sitladevi Temple Road, Mahim, Mumbai-16. Mumbai-16. Mumbai-16. All the directors of the said company All the directors of the said company All the directors of the said company have have have been impleaded as accused nos. 1 to 8 to the been impleaded as accused nos. 1 to 8 to the been impleaded as accused nos. 1 to 8 to the said said said complaint. The present petitioners are complaint. The present petitioners are complaint. The present petitioners are accused accused accused nos. 5 and 6 and they contend that they nos. 5 and 6 and they contend that they nos. 5 and 6 and they contend that they 2 are are are the nominee directors representing the public the nominee directors representing the public the nominee directors representing the public sector sector sector undertaking MMTC (The Mineral and Metal undertaking MMTC (The Mineral and Metal undertaking MMTC (The Mineral and Metal Trading Trading Trading Corporation Corporation Corporation of India Limited. Undoubtedly, of India Limited. Undoubtedly, of India Limited. Undoubtedly, MMTC MMTC MMTC Ltd has equity participation to the extent of Ltd has equity participation to the extent of Ltd has equity participation to the extent of Rs.4.75 Rs.4.75 Rs.4.75 crores and therefore it had nominated the crores and therefore it had nominated the crores and therefore it had nominated the present present present petitioners as directors on the board of petitioners as directors on the board of petitioners as directors on the board of M/s M/s M/s Indo French Biotech Enterprises Ltd. The Indo French Biotech Enterprises Ltd. The Indo French Biotech Enterprises Ltd. The petitioners petitioners petitioners further state that they being the further state that they being the further state that they being the nominee nominee nominee directors were not involved in the day to directors were not involved in the day to directors were not involved in the day to day day day management of M/s Indo French Biotech management of M/s Indo French Biotech management of M/s Indo French Biotech Enterprises Enterprises Enterprises Ltd and hence they cannot be held Ltd and hence they cannot be held Ltd and hence they cannot be held vicariously vicariously vicariously liable liable liable for the offence namely dishonour for the offence namely dishonour for the offence namely dishonour of of of cheque issued by the said company in favour of cheque issued by the said company in favour of cheque issued by the said company in favour of the the the complainant. On that count, they prayed that complainant. On that count, they prayed that complainant. On that count, they prayed that the the the order of issuance of process passed by the order of issuance of process passed by the order of issuance of process passed by the learned learned learned Magistrate is illegal and the proceedings Magistrate is illegal and the proceedings Magistrate is illegal and the proceedings are are are required to be quashed to the extent they are required to be quashed to the extent they are required to be quashed to the extent they are concerned. concerned. concerned. 3.3.3. In the normal course, this Court would have In the normal course, this Court would have In the normal course, this Court would have directed directed directed the petitioners to approach the Sessions the petitioners to approach the Sessions the petitioners to approach the Sessions Court Court Court as as as has been the consistent view of this Court has been the consistent view of this Court has been the consistent view of this Court toto to challenge the order of process by filing challenge the order of process by filing challenge the order of process by filing Criminal Criminal Criminal Application under section 397 of Cr.P.C. Application under section 397 of Cr.P.C. Application under section 397 of Cr.P.C. However, However, However, the Writ Petition has been pending for the Writ Petition has been pending for the Writ Petition has been pending for last last last 3 years. There is inordinate delay caused in 3 years. There is inordinate delay caused in 3 years. There is inordinate delay caused in the the the trial of the complaint and the complainant is trial of the complaint and the complainant is trial of the complaint and the complainant is anxious anxious anxious to ensure that the Criminal Application is to ensure that the Criminal Application is to ensure that the Criminal Application is decided decided decided at the earliest possible. at the earliest possible. at the earliest possible. 3 4.4.4. Second proviso to section 141 of the Negotiable Second proviso to section 141 of the Negotiable Second proviso to section 141 of the Negotiable Instruments Instruments Instruments Act, 1881 reads as under : Act, 1881 reads as under : Act, 1881 reads as under : " Provided further that where a person is Provided further that where a person is Provided further that where a person is nominated nominated nominated as a Director of a company by as a Director of a company by as a Director of a company by virtue virtue virtue of his holding any office or of his holding any office or of his holding any office or employment employment employment in the Central Government or in the Central Government or in the Central Government or State State State Government or a financial corporation Government or a financial corporation Government or a financial corporation owned owned owned or controlled by the Central or controlled by the Central or controlled by the Central Government Government Government or the State Government, as the or the State Government, as the or the State Government, as the case case case may be, he shall not be liable for may be, he shall not be liable for may be, he shall not be liable for prosecution prosecution prosecution under under under this Chapter. " this Chapter. " this Chapter. " 5.5.5. In addition, the complaint does not In addition, the complaint does not In addition, the complaint does not specifically specifically specifically set set set out the role played by the present out the role played by the present out the role played by the present petitioners petitioners petitioners in the day to day management of in the day to day management of in the day to day management of Indo-French Indo-French Indo-French Biotech Enterprises Ltd though it Biotech Enterprises Ltd though it Biotech Enterprises Ltd though it states states states that the accused no.1 V.Gopal is the that the accused no.1 V.Gopal is the that the accused no.1 V.Gopal is the President/Chairman President/Chairman President/Chairman of of of the said company. It appears the said company. It appears the said company. It appears that that that accused nos. 2,3 and 4 and 5 are whole time accused nos. 2,3 and 4 and 5 are whole time accused nos. 2,3 and 4 and 5 are whole time directors/employees directors/employees directors/employees of accused no.7 company and as of accused no.7 company and as of accused no.7 company and as has has has been held by the Supreme Court in AIR 2007 been held by the Supreme Court in AIR 2007 been held by the Supreme Court in AIR 2007 SUPREME SUPREME SUPREME COURT 1650 (Everest Advertising Pvt.Ltd vs. COURT 1650 (Everest Advertising Pvt.Ltd vs. COURT 1650 (Everest Advertising Pvt.Ltd vs. State State State Govt. of NCT of Delhi & ors), the vicarious Govt. of NCT of Delhi & ors), the vicarious Govt. of NCT of Delhi & ors), the vicarious liability liability liability on account of dishonour of cheque will be on account of dishonour of cheque will be on account of dishonour of cheque will be fastened fastened fastened on these accused and not the petitioners on these accused and not the petitioners on these accused and not the petitioners as as as the petitioners being the nominee directors the petitioners being the nominee directors the petitioners being the nominee directors cannot cannot cannot be said to be engaged in the day to day be said to be engaged in the day to day be said to be engaged in the day to day activities activities activities of accused no. 7 company. of accused no. 7 company. of accused no. 7 company. 6.6.6. The petition therefore succeeds. The same is The petition therefore succeeds. The same is The petition therefore succeeds. The same is hereby hereby hereby allowed in terms of prayer clause (b). allowed in terms of prayer clause (b). allowed in terms of prayer clause (b). Criminal Criminal Criminal Case No.484/S/1998 shall continue against Case No.484/S/1998 shall continue against Case No.484/S/1998 shall continue against all all all other accused except the present petitioners other accused except the present petitioners other accused except the present petitioners i.e. i.e. i.e. accused nos.5 and 6 and it is hereby directed accused nos.5 and 6 and it is hereby directed accused nos.5 and 6 and it is hereby directed 4 that that that the said complaint shall be heard and decided the said complaint shall be heard and decided the said complaint shall be heard and decided on on on its own merits expeditiously and in any case its own merits expeditiously and in any case its own merits expeditiously and in any case within within within six months from the date of receipt of writ six months from the date of receipt of writ six months from the date of receipt of writ from from from this Court. this Court. this Court. Writ Writ Writ to go forthwith to the trial Court. to go forthwith to the trial Court. to go forthwith to the trial Court. (B.H.Marlapalle, (B.H.Marlapalle, (B.H.Marlapalle, J) J) J)