1 APPLN 4557/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.4557 OF 2010 Yogendra Kumar Nathany & Ors ..... Applicants. V/s M/s Aren Pharmaceuticals ..... Respondents. Mr. Falguni Brahmbhatt for the applicants. Mr. P.A. Pol, PP for the State. CORAM: V.M. KANADE, J. DATE : 16th November, 2010 P.C:- 1. Heard the learned Counsel appearing on behalf of the applicants. 2. Applicants are challenging the order of issuance of process passed by the learned Metropolitan Magistrate on a complaint filed by Respondent No.1 under section 138 of the Negotiable Instruments Act. 3. It is submitted that the original accused No.4 was never the Director of the Company. In support of the said submission, Counsel for the applicants invited my attention to Form No.32 which is annexed to the application. She submitted that the said original accused No.4 had resigned 2 APPLN 4557/10 before issuance of the cheque. It is further submitted that a specific role of the applicants has not been mentioned in the complaint and, therefore, the said order issuing process passed by the learned Magistrate is liable to be quashed. In support of the said submission, reliance is placed on the judgment in National Small Industries Corporation Limited v. Harmeet Singh Paintal and another1 4. It is not possible to accept the said submission made on behalf of the applicants. Perusal of the complaint clearly indicates that a specific role of the applicants has been mentioned in para 2 and 3. Paragraphs 2 and 3 of the said complaint reads as under:- “2. That the accused no.1 is the company and accused nos. 2, 3 and 4 are the Directors of accused no.1 and accused nos. 5, 6 and 7 are the authorised representatives of accused no.1 as well as accused nos. 2, 3 and 4. That the accused 2, 3, 4, 5, 6 and 7 had negotiated and requested to supply the pharmaceutical raw material and other products and from time to time the complainant had sold, supplied and delivered to accused no.1 on believing on the representations of accused no.2 to 7 and accused no. 2, 3, 4, 5, 6 and 7 are looking after the day to day affairs of 1 1 (2010) SLT 593 = (2010 3 SCC 330 3 APPLN 4557/10 accused no.1 including the financial transactions and complainant on believing on the said representations to be true and correct had sold, supplied and delivered the said articles to the accused.” “3. That the accused have placed various orders for supply of pharmaceuticals raw materials under various purchase orders and as per their requirement the complainant had sold, supplied and delivered to the accused the said material which accused had duly received as follows: Sr.No. Order No. Invoice No. Invoice date Amount 1 53 2008-09/000077 23/04/2008 51177.00 2 53 2008-09/000078 23/04/2008 70350.00 3 53 2008-09/000079 23/04/2008 29073.00 4 52 2008-09/000080 23/04/2008 14291.00 5 52 2008-09/000081 23/04/2008 68623.00 6 53 2008-09/000082 23/04/2008 10732.00 7 55 2008-09/000083 23/04/2008 11827.00 8 54 2008-09/001084 23/04/2008 57603.00 9 51 2008-09/000085 23/04/2008 15405.00 10 69 2008-09/000095 25/04/2008 64974.00 11 68 2008-09/000099 25/04/2008 11529.00 12 68 2008-09/000100 25/04/2008 5684.00 Marked as Ex ‘B’ coly are the copies of the said Purchase Orders, Invoices, Delivery 4 APPLN 4557/10 Challans and Lorry Receipts” 5. So far as original accused No.4 is concerned, according to the applicants he was not Director of accused No.1. In my view, this is a disputed question of fact since in the complaint and more particularly in para 2, the complainant has specifically come out with a case that original accused No.4 was a Director of accused No.1. In view of the Division Bench Judgment of this Court in Suhas Bhand vs State of Maharashtra1 if there is a dispute regarding resignation of the Director, the said question will have to be decided by the Trial Court during trial. Hence, the submissions made by the learned Counsel appearing on behalf of the applicants cannot be accepted. 6. Application is dismissed. V.M. KANADE, J. 1 2009 ALL MR (Cri) 2614