1 Cri.WP no.256 of 2011 hvn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL WRIT PETITION NO. 256 OF 2011 Ms. Pooja Chandra and anr. ... Petitioners Versus State of Maharashtra and Anr. ... Respondents Mr.Kiran Kulkarni for the petitioners. Mr. D.R. More, A.P.P. for State. CORAM : SMT. R.P. SONDURBALDOTA,J. DATED : FEBRUARY 07, 2011 P.C. 1. This petition filed under Article 226 of the Constitution of India and 482 of Code of Criminal Procedure challenges the order dated 30th August, 2010 passed by the court of Magistrate issuing process in Criminal Complaint no 3481/SS/2010 filed by respondent no.2 under section 138 of the Negotiable Instruments Act. The Petitioners have directly approached this court without exhausting the remedy of approaching the Sessions Court invoking its revisional jurisdiction. 2 Cri.WP no.256 of 2011 2. Both the petitioners being residents of Delhi, the learned Magistrate had held an enquiry under section 202 Code of Criminal Procedure. In the enquiry, he perused the complaint, documents and the verification statement. On perusal of the documents, he was satisfied that there is sufficient material to proceed against the petitioners herein and hence, issued process against them along with other accused persons. The challenge to the impugned order is two fold, firstly that the learned Magistrate has done mechanical exercise of holding an enquiry under section 202 of Code of Criminal Procedure and secondly the statements made in the complaint against the petitioners to connect them to the offence are not sufficient. It has also been contended that both the petitioners, on receiving the statutory notice had sent e-mail dated 1st July, 2010 informing the learned advocate for respondent no. 2 that both were not any more concerned with accused no.1 company i.e. M/s. Intercon Infotech Pvt. Ltd. Petitioner no. 1 informed that she had resigned from the directorship of the company on 15th May, 2009 and since that day was no more responsible for the company. Petitioner 3 Cri.WP no.256 of 2011 no.1 however, alleges in her e-mail that respondent no. 2 has misused the cheques. Respondent no. 2 had replied the e-mails through it's lawyer making specific allegation that the petitioners at the relevant point of time, along with other accused persons, were involved in the day today affairs and management of the company and as a matter of fact, both had transacted with respondent no. 2 for and on behalf of the company even after the date of alleged resignation. These averments coupled with the averments in the petition, that the petitioners at the relevant time, were in charge of the day today affairs of the company, was found sufficient by the learned Magistrate. 3. Mr. Kulkarni, the learned counsel for the petitioners relying upon the decision of the Apex Court in National Small Industries Corp. Ltd. Vs. Harmeet Singh Paintal and anr. reported in 2010 Cri.L.J. 1907 and in J.N. Bhatia and Others Vs. State and Anr. reported in (2008) IITR 276 (Delhi) submits that the bald allegation in the complaint that the petitioners are involved in day today affairs of the company is not sufficient to 4 Cri.WP no.256 of 2011 attract the provisions of section 141 of the Negotiable Instruments Act to make the petitioners vicariously liable for the offence of dishonour of the cheque. He submits it was necessary for respondent no. 2 to assign a specific role to the petitioners by setting out in the complaint the nature of transaction entered into by them. He further submits that the order dated 30th August, 2010 passed by the learned Metropolitan Magistrate issuing process against the petitioners is a cryptic order and does not indicate application of mind by the learned Judge to this aspect of the matter. 4. Perusal of the order shows that the learned Judge had taken into consideration the complaint, the documents relied upon by respondent no. 2 and the statement in verification of respondent no. 2 for arriving at the prima facie satisfaction that there is sufficient material to proceed against the accused. As already seen above, respondent no. 2 has not only avered in the complaint that the petitioners and the other two directors of original accused no. 1 were in charge and responsible for day today affairs and conduct of the management and business of 5 Cri.WP no.256 of 2011 accused no. 1 at the material time but further states that all the accused are responsible for issuance of the cheques and for dishonour of the same. They are alleged to have neglected to exercise care and caution in ensuring that the cheques are honoured when presented for payment. Further when the petitioners contended by their e-mail that they are no more concerned with accused no. 1 company, respondent no. 2 in its reply stated that as a matter of fact the petitioners had transacted with respondent no. 2 on behalf of the company from which they claimed to have resigned much prior. It is to be noted that the petitioner no. 1 in her e-mail to respondent no. 2 did not merely inform him of her resignation from the post of directorship but had alleged that respondent no. 2 has misused the cheques. In view of these facts it can not be said, at least at this stage of the proceedings, that there is no sufficient material on record to connect the petitioners to the offence alleged in the complaint. Hence, petition is dismissed. [Judge]