* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2798 OF 2009 Surender Kumar Talwar ..............Petitioner V/S. State of Maharashtra & anr. .............Respondents ---------- Shri. Anand Kumar, Mr. Jahangir, advocate for the petitioner. Shri. A.P. Mundargi with Mr. Rajesh Talekar and Mr. Dinesh Mishra i/by. M/s. K. Ashar & Co., adv. for respondents. Shri. S.R. Shinde, APP for State. CORAM :- S.C. DHARMADHIKARI, J. DATED :- 5 th JANUARY, 2010. P.C. :- 1. Heard Mr. Kumar appearing for the petitioner and Mr. Mundargi appearing for respondent no.2. 2. The petitioner is original accused no.8 in Criminal Complaint No. 3180/SS/2009 on the file of the learned Metropolitan Magistrate, 12th Court, Bandra, Mumbai. The second respondent is the complainant. The complaint has been filed alleging commission of offences under Section 138 Negotiable Instruments Act read with Section 141 of the Negotiable Instruments Act, 1881 * 2 * (as amended). 3. Mr. Kumar, appearing in support of this petition has raised three contentions. His first contention is that the court at Mumbai, i.e. Metropolitan Magistrate, 12th Court, Bandra has no territorial jurisdiction to entertain and try the complaint, inasmuch as, the cheques in this case, have been issued from Delhi. The petitioner, who is alleged to be a Director of the company, based in Delhi. The Bank Account from which the cheque has been issued is also of a Bank at Delhi. 4. His second contention is that assuming that the court below has the territorial jurisdiction, yet, insofar as the petitioner is concerned, the allegations/averments in the complaint do not meet the requirement of law. Beyond stating that the petitioner is one of the Directors, there is nothing to indicate as to how he is responsible for the conduct of the business and for commission of the offence alleged. Therefore, the complaint as against the petitioner deserves to be dismissed. In any event, the relevant date is the date of commission of offence i.e. of dishonour of cheque. On the date when the cheques were dishonoured, the petitioner was not a Director of the company. 5. The third submission is that the petitioner had resigned as a Director of the company much before the aforementioned date. Form No.32 has been duly filed with the Registrar of Companies. The extract is produced and * 3 * therefore applying the principles laid down by this court, it would be apparent that no complaint could have been filed against the petitioner. He had resigned much prior to the relevant date. The complaint as against him deserves to be dismissed. 6. For the aforementioned reasons, it is urged that the order issuing process is bad in law and the proceedings as far as the petitioner is concerned, are an abuse of the process of the court and therefore this court should interfere in its inherent jurisdiction under Section 482 CrPC, so also, under Article 227 of the Constitution of India. 7. Reliance is placed upon number of decisions of the Hon ble Supreme ’ Court and of this court to support the aforementioned contentions. 8. On the other hand, Mr. Mundargi, learned Senior Counsel appearing for respondent no.2-original complainant, submits that the law does not require any evidence to be pleaded. The law only requires a pleading to the extent that the petitioner is accused of the offence allegedly committed. The petitioner is liable as he was a Director of the company, he was responsible for the conduct of its affairs and was in-charge thereof. That apart, Mr. Mundargi submits that the entire complaint must be perused and if it so read and considered, it is apparent that there is enough material to indicate that the petitioner had approached the complainant alongwith other Directors of Accused No.1 for sanction of the loan/credit facility. He had signed the * 4 * relevant application. He was very much a Director, when the post-dated cheques were issued. In these circumstances, now alleging that he had resigned much before the offence is committed, is something which would require evidence to be led at the trial. This is no ground to quash the process issued against the petitioner. 9. Mr. Mundargi, contends that as far as the territorial jurisdiction is concerned, the second respondent-original complainant and the company in question entered into negotiations and discussions at Bombay. The loan was sanctioned and disbursed from the Account at Bombay. The transaction has taken place at Bombay. In these circumstances, the law is not that the court at Bombay would not have territorial jurisdiction. For all these reasons, he submits that this is not a fit case for interference in the writ and inherent jurisdiction of this court. 10. I have perused the complaint with the assistance of the learned counsel appearing for the parties. 11. The second respondent/original complainant filed the complaint against one Sudarshan Consolidated Ltd and 10 Others. The first accused is the company, whereas, accused nos.2 to 11 are the Directors thereof. The complainant is one Rahul P. Mote working as a Senior Legal Officer and he has stated that all accused on behalf of accused no.1 approached the complainant with a request for trade finance facility, and accordingly the * 5 * facility was granted. All accused had issued the cheques which were post- dated and twenty eight in number. The amount under the cheques is Rs. 22 crores (approx). The cheque was signed by accused no.2 on behalf of accused no.1. However, in the subsequent paragraphs, it has been alleged that when the cheques were deposited, they came to be dishonoured by the Bank with the remark Account Closed . In paragraph-4 of the complaint, it “ ” is stated that accused no.1 is a limited company of which accused nos.2 to 11 are Directors. Accused no.2 is the Director and authorised signatory. At all material times, relevant and relating to the complaint, accused nos.2 to 11 were and are in-charge of and responsible for the conduct of the business of accused no.1 and are looking after the day to day affairs of accused no.1. They are liable to be prosecuted as all the accused have connived in the commission of offence in their capacity as Directors/Signatories. 12. Reference is made to the board resolutions as well. 13. The complaint must be perused as a whole and there is much substance in the contention of Mr. Mundargi, that at this stage, the complainant cannot be called upon to produce the evidence or to plead it. At the stage where the matter stands, namely issuance of process, the trial court has satisfied itself that the averments in the complaint are prima-facie supported by some documents, one of which appears to be the agreement for sanctioning the facility. Upon perusal of this entire material, the process has * 6 * been issued. The very fact that the petitioner in alternative pleads that he has resigned from the company much prior to the commission of the offence and that the resignation is supported by filing of Form No.32, is eloquent enough. All these matters and aspects cannot be assumed in favour of the petitioner straightaway. Even in the Division Bench decision, upon which reliance is placed by the petitioner, namely one reported in 2009 (All) MR (Cri.) page 2614 Suhas Bhand V/S. State of Maharashtra & Anr., the Division Bench has summarised the legal principles. Mere production of certified copy of Form No.32 certified by the Registrar of Companies, is not enough, and the factum of resignation will still have to be established and proved. Applying these principles to the facts of the present case, to my mind, the second respondent is right in urging that at this stage, the complainant cannot be called upon to prove as to whether the petitioner is still a Director of the accused no.1-company. These are matters which will have to be finally determined at the trial. 14. As far as the territorial jurisdiction of the trial court is concerned, there is no substance in that objection as well. Once again, the legal principles are well settled. It is not as if the facts of individual cases, can be completely ignored. Ultimately, the objection to the territorial jurisdiction of the court must be decided in the peculiar factual backdrop and also by applying the principles laid down in the decisions of the Supreme Court. If * 7 * all ingredients of the offence are set out in the Supreme Court decisions and one of the important ingredient thereof is the place where the cheque was issued, intimation of dishonour is received, notice is issued by the complainant, then, the aspect of sanctioning and disbursement of facilities cannot be ignored. In this case, handing over of cheques and issuance of notices upon dishonour are at Bombay. It cannot be said that the court at Bombay lacked the territorial jurisdiction to try the complaint. This objection also must therefore fail. In the result, I find no infirmity in the order issuing process and this is not a fit case for interference under the inherent jurisdiction of this court, so also, under Article 227 of the Constitution of India. The supervisory jurisdiction is to be invoked on equitable and discretionary principles. Ultimately, if the order under challenge discloses no perversity nor is vitiated by any error apparent on the face of the record, then, it requires no interference in writ jurisdiction. Equally, if the proceedings are not an abuse of the process of the court and if there is no miscarriage of justice, the inherent jurisdiction is of no assistance. The petition is devoid of any merits and is accordingly dismissed. [S.C. DHARMADHIKARI, J] * 8 *