1 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL WRIT PETITION NO.3256 OF 2010 K.C.Palaniswamy ...Petitioner. v. State of Maharashtra & Anr. ...Respondents. Mr.Marwadi a/w Shri Faisal Sayyed i/by M/s.M.K.Ambalal ,advs. For the Petitioner. Smt. V.R.Bhosale, APP for the R.No.1/State. Shri Unni Krishnan, adv. For the R.No.2. CORAM : J.H. BHATIA, J. DATED : MARCH 7, 2011. P.C. 1 Heard the learned counsel for the parties. The respondent no.2 is the original complainant, who had filed complaint no. 1112/SS/2004 before the Additional Chief Metropolitan Magistrate 5th Court Dadar under Section 138 of the Negotiable Instruments Act. Now it is pending as Criminal Case No.866/SS/2005 before 13th Metropolitan Magistrate. In the complaint there were in all 5 accused, Accused No.1 is a company, Accused nos.3, 4 and 5, whose names are mentioned, were allegedly Managing Director, Senior Vice President and Director Finance respectively. Accused no.2 was shown as chairman of the company without mentioning the name of the person, who was 2 holding the post of chairman. Process was issued. However, for want of name of the chairman, i.e. accused no.2, summons could not be issued and, therefore the learned Magistrate asked the complainant to supply the name of the accused no.2 Chairman so that summons could be issued. In view of that, for the first time in the year 2010, complainant provided the name of the present petitioner K.C.Palaniswamy as Chairman and accordingly summons was issued and served. Petitioner also appeared before the Magistrate. However, the petitioner contends that he was not the chairman of the company and wrongly his name has been mentioned and summons has been served on him. Therefore, he wants proceedings against him to be quashed. 2 Whether the petitioner was or was not chairman of the accused no.1 Company is a question of fact. Admittedly, the petitioner was not shown as one of the accused persons in the complaint and his name was given by the complainant in the above mentioned circumstances. If he was not chairman, summons could not be issued to him nor he could be required to face the trial. It will require appropriate enquiry by the trial Court to find out whether during the relevant period, present petitioner was or was not chairman. 3 Therefore, with consent of the learned counsel for the 3 parties, petition stands disposed off with the following directions. Petitioner shall be at liberty to move before the trial Court and the trial Court shall enquire as to whether the petitioner was or was not chairman of the accused no.1 Company during the relevant period. Respondent no.2, i.e., the complainant shall not take any objection to tenability of such application before the Magistrate. The Petitioner shall be granted exemption from personal appearance till the above question is decided. (J.H. BHATIA,J.)