x IN THE HIGH COURT OF JUDICATURE AT BILASPUR CHHATTISGARH Cr_.M.P.No. 13 g [2006 Kailash Ahirwari, S/O. Shri J.P. Ahirwar‘; aged about : 29 years, R/ O 56, Anupam Nagar, Distt. Rajnandgaon (C.G.) VERSUS ‘ PETITIONER RESPONDENTS 1. Padamchand Nahata, ’ S/O. Shri K.L. Nahata, Aged about : 55 years, R/O. House No. 201 A 1st Floor, M.P.H.B. Complex, Near Girls College Raipur Naka, Distt. Durg (C.G.) w; State of Chhattisgarh Through : Collector Rajnandgaon, Distt. : Rajnandgaon (C.G.) PETITION UNDER SECTION 4g OF THE CODE \Vr OF CRIMINAL PROCEDURE 1973 y’w é 7 \ @ HIGH COURT OF CHHATTISGARH AT BILASPUR Cr.M.P.NO. 139I2006‘ PETITIONER ‘ Kailash Ahirwat Versus RESPONDENT Padamchand Nahata Order be posted for pronouncement on X 42008. ‘ ,r-r‘ \ f“ sd/a T.P. Sl—{ARMA m éféW W6 \\_ Cu? tilGH COURT OF CHHATTISGARH AT BILASPU_R Single Bench : Hon’ble Mr. g ~ . Shri Vivek Shrivastava counsel for the petitioner. Shri UKS Chandel PL for the respondent/State. PROCUEDURE PETITION UNDER SECTION 482 OF THE CODE OF CRIMINAL ORDER (Passed on g—4-2008) applicant No.1 for the offence punishable under section 138 of the Negotiable Instrument Act (for short the “Act") as the trial Court has cornmitted an illegality by quashing the proceedings and taking cognizance against non-applicant No.1. i 2. Counsel for the parties are heard and the order impugned as well as the documents available on record are perused. r 3. r It is argued on behalf of the petitioner that the non applicant No.1 is the Director of the Premier Conversant TechnOlogies Pvt. Ltd. Cheque Cr. M.P. No. '139/2006 PETITIONER Kailash Ahirwar,S/o Shri Nagar, aged about 29 years, R/o 56, Distt.‘Rajnandgaon (C.G.). Versus —\ RESPONDENTS PadamchandNahata,S/o Shri r Nahata, aged about 55 r House No. 201' A 15‘ Floor, years, u f Complex, Near Girls College Naka, Distt. Durg (C.G.). _ 2. State of Chhattisgarh Through Rajnandgaon, Distt. $9 for payment of liability against the Company, non applicant No.1 and one Parth Sarthi was dishonoured and after receiving the information on 4.11.2003 the petitioner sewed a notice dated 27.11.2003 on non applicant No.1 and other accused persons but the dues were not paid by them. Complaint was filed before the Judicial Magistrate First Class. Trial Court after required examination took cognizance of the offence and issued process to the accused persons including the non-applicant No.1. Application for recalling of the process against the non-applicant No.1 was filed before the trial court that the alleged cheque was issued and idishonoured before his joining as Director, therefore, he was not responsible fot any dues and has committed no offence. After hearing the parties, the trial Court rejected the application. Non applicant No.1 preferred a revision petition and after affording opportunity of hearing to the parties learned Sessions Judge, Rajnandgaon committed an illegality in setting aside the order of taking cognizance and issuing process against the non-applicant No.1 by the order impugned. 4. 'lt is argued on behalf of the petitioner that the Revisional Court was notjustified in holding that the non applicant No.1 is not responsible for the dues and has not committed the offence. Reliance is placed on behalf of the petitioner on the decision of the Supreme Court in the matter of S.V. Muzumdar and others Vs. Gujrat State Fertilizer Co. Ltd and another repOIted in 2005 SCW 2364 in which it has been held that dropping of proceedings on the ground that the allegations would not constitute a foundation for action in terms of Section 141 of the Act is a question.,to be adjudicated at the time of trial and such dropping of proceedings would not be proper. Relevant portion is reproduced as hm )§ under: “We find that the prayers before the courts below essentially were to drop the proceedings on the ground that the @é allegations would not constitute a foundation for action in terms of Section‘141 of the Act. These questions have to be adjudicated at the trial. Whether a person is in charge of or is responsible to the company for conduct of the business is to be adjudicated on the basis of materials to be ‘placed by the parties. Sub section (2) of Section 141 is a deeming provision which as noted supra operates in certain specified circumstances. Whether the requirements for the application of the deeming provision exist or not is again a matter for adjudication during trial. Similarly, ilvhether the allegations contained are sufficient to attract cujlpability is a matter for adjud‘lc‘ation‘at the trial.” #urther reliance is placed on behalf of the petitioner on the decision of Madras High Court in the matter of K. Shanmugham Vs. Dr. Purushotham Lal reported in Company cases 2002 (289) in which it has been held that the cognizance canbe taken against a person who was working as Director at the time when the cheque was dishonoured. 5. On the other hand, learned counsel for the non-applicant No.1 placed reliance on the decision of the Supreme Court in the matter of S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla and another reponed in (2005) 8 SCC 89 in which it has been held that it is necessary to aver 4 ~ . that atthe time of commission of the offence the person accused was in charge of, and responsible for the conduct of business of the Company and in the absence of averment being made in the complaint, the requirements of Section 141 of the Act cannot be said to be satisfied. 6. ln the instant case, according to the complaint, the non applicant No.1 was Director of the Company. Notice was issued to him after dishonour of the cheque and the same was replied by the non applicant No.1 that he joined the Company only on 1.11.2003. Petitioner was 5‘tWs‘. W A“, informed by the Company’vide letter dated 31.10.2003 regarding diShonour of the cheque. According to rovisions of Section 138 of the . j p accused for payment of dues Within a stipulated period and if the drawer of the cheque fails to pay the dues within the stipulated period then the complaint may be filed before the Competent court in accordance with the provisions of Section 142 of the Act. The offence is completed on the date of dishonour of the cheque but the payee may be saved from criminal prosecution if he pays the dues within the stipulated time of payment of‘n‘foney ln the instant case the cheque was dishonoured on 31 1O 2003 On that day, according to the documents filed by the petitioner non applicant was not the Director of the Company Learned Sesswns Judge has set aSide the order of taking cognizance and issuance of process against the non applicant No.1 considering the factum of joining of the non applicant as Director after the date on which the cheque was dishonoured. f 8' interference is called for by this Court 10. . Consequently, the petition being without substance is liable to be dismissed and the same is hereby dismissed. i do not find this to be a case of rarest of rare in which any :1 Sd/- T.P. SHWA Jllfige, \) AA "