1 (Crim Appln 1680 of 2010) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1680 OF 2010 A. Parthasarthy Naidu ...Applicant Vs. Global Trade Finance Ltd. And Anr. ...Respondents ----- Mr.K.S. Patil i/b. Ashok Bhatia for Applicant Mr.Yashpal Thakur i/b. Paras Kuhad & Associates for the Respondent No.1 Mrs.M.R. Tidake -APP for the State ----- WITH CRIMINAL APPLICATION NO.1659 OF 2010 A. Parthasarthy Naidu ...Applicant Vs. Global Trade Finance Ltd. And Anr. ...Respondents ----- Mr.K.S. Patil i/b. Ashok Bhatia for Applicant Mr.Yashpal Thakur i/b. Paras Kuhad & Associates for the Respondent No.1 Mrs. R.V. Newton -APP for the State ----- 2 (Crim Appln 1680 of 2010) WITH CRIMINAL APPLICATION NO.1681 OF 2010 A. Parthasarthy Naidu ...Applicant Vs. Global Trade Finance Ltd. And Anr. ...Respondents ----- Mr.K.S. Patil i/b. Ashok Bhatia for Applicant Mr.Yashpal Thakur i/b. Paras Kuhad & Associates for the Respondent No.1 Mrs.P.P. Bhosale-APP for the State ----- WITH CRIMINAL APPLICATION NO.1682 OF 2010 A. Parthasarthy Naidu ...Applicant Vs. Global Trade Finance Ltd. And Anr. ...Respondents ----- Mr.K.S. Patil i/b. Ashok Bhatia for Applicant Mr.Yashpal Thakur i/b. Paras Kuhad & Associates for the Respondent No.1 Mrs.M.R. Tidake -APP for the State ----- WITH CRIMINAL APPLICATION NO.1683 OF 2010 A. Parthasarthy Naidu ...Applicant Vs. Global Trade Finance Ltd. And Anr. ...Respondents 3 (Crim Appln 1680 of 2010) ----- Mr.K.S. Patil i/b. Ashok Bhatia for Applicant Mr.Yashpal Thakur i/b. Paras Kuhad & Associates for the Respondent No.1 Mr.A.S. Shitole-APP for the State ----- CORAM: V.M. KANADE J. DATED: 18TH AUGUST, 2010 P.C. 1. Heard the learned Counsel appearing on behalf of the Applicant and learned Counsel for the Respondent 2. In all these applications, the Applicant is challenging the order of issuance of process passed by the Learned Magistrate in a complaint filed by the Respondent No.1 under section 138 of the Negotiable Instruments Act. 3. The learned Counsel for the Applicant challenged the order of issuance of process firstly, on the ground that there are no specific averments made in the complaint regarding the role played by the Applicant and in view of the judgment in the case of National Small Industries Corporation Limited vs. Harmeet Singh Paintal and Another reported in (2010)3 Supreme Court Cases 330 the said order of issuance of process was liable to be quashed. Secondly, it was 4 (Crim Appln 1680 of 2010) submitted that prior to the issuance of cheque, the Applicant had resigned as a Director of the company in the year 2007 and, therefore, he could not be held to be liable for the dishonour of the cheque. Thirdly, it was submitted that the verification which was recorded by the Learned Magistrate was in a fixed format and is contrary to the guidelines laid down by this Court in the case of Amarnath Baijnath Gupta & Anr. vs. Mohin Organics Pvt. Ltd. & Anr. reported in 2009 ALL MR (Cri)184. 4. On the other hand, the learned Counsel appearing on behalf of the Complainant submitted that specific averments have been made in the complaint in which it was specifically mentioned that the Applicant was in- charge and responsible for the conduct of the business of the Accused No.1 and he was looking after the day- to-day affairs of the company and he had connived in the commission of the present offence. He relied on a judgment of the Apex Court in the case of State of NCT of Delhi,Through Prosecuting Officer, Insecticides, Government of NCT, Delhi vs. Rajiv Khurana decided on 30th July, 2010 in Criminal Appeal No. 1380 arising out of SLP (Cri) No. 7739 of 2008. He submitted that in this case, the Apex Court, after taking into consideration the various judgments on 5 (Crim Appln 1680 of 2010) this point, had observed that if necessary averments are made in the complaint, on that ground, the process should not be quashed. So far as the question of resignation is concerned, he had disputed the fact of resignation and he submitted that the judgment on which the reliance was placed by the Learned Counsel for the Applicant viz. DCM Financial Services Limited vs. J.N. Sareen and Another, reported in (2008) 3 Supreme Court Cases (Cri) 401 would not apply in this case since in the said case the Supreme Court had observed in paragraph 10 of the order that there was no dispute that the First Respondent resigned as a Director of the company on or about 25.5.1996. He submitted that in this present case, this question was disputed and the Trial Court alone would have to decide the said aspect by relying on the judgment of the Apex Court in the case of Malwa Cotton and Spinning Mills Ltd. vs. Virsa Singh Sidhu and Ors. reported in 2008 (5) ALL MR (SC) 478 and more particularly, paragraph 4. He submitted that since plea has already been recorded, at this stage, it is not open for the Applicant to challenge the recording of the verification by the Magistrate. 5. In my view, the submissions made by the Learned Counsel for the Applicant cannot be accepted. 6 (Crim Appln 1680 of 2010) Firstly, it is an admitted position that the plea has been recorded by the Learned Magistrate and it is posted for recording of evidence. It is a well settled position in law that once the plea is recorded, the High Court should not normally interfere with the issuance of process while exercising its inherent jurisdiction under section 482 of the Cr.P.C. The Apex Co urt in the case of Subramanium Sethuraman vs. State of Maharashtra and Anr. reported in (2004) Cri.Law Journal 4609 has clearly observed in paragraph 16 of the said judgment that once the plea is recorded, the Court should not consider the question of discharge or recalling the summons issued by the Magistrate. So far as the first submission made by the learned Counsel for the Applicant is concerned, in my view, there are specific averments made in paragraph 4 in the complaint and therefore, it cannot be said that there are no averments in the complaint or that the averments are vague regarding the role played by the Applicant herein. Hence, the ratio of the judgment in the case of NCT of Delhi,Through Prosecuting Officer, Insecticides, Government of NCT, Delhi vs. Rajiv Khurana (supra), would squarely apply to the facts of the present case. Secondly, so far as the question of resignation is concerned, since it is a disputed question, that 7 (Crim Appln 1680 of 2010) aspect would have to be considered only at the time of trial as has been held by the Apex Court in the case of Malwa Cotton and Spinning Mills Ltd. (supra). So far as the question of verification is concerned, since plea is recorded, it is now open for the Applicant to challenge the improper recording of the verification. Hence, applications are dismissed. 6. However, the Applicant is exempted from appearing in the Trial court. The Applicant, if he so desires, may make an application to the learned Magistrate that his statement under section 313 of the Cr.P.C. may be recorded through his advocate as laid down under section 313 (5). The Applicant, however, shall give an undertaking that he shall not dispute the correctness of the answers which are given by him. The trial is expedited. All the contentions raised by the Applicant are kept open. (V.M. KANADE J.)