1 CRWP1978/10 TO CRWP 1981/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1978 OF 2010 WITH CRIMINAL WRIT PETITION NO.1979 OF 2010 WITH CRIMINAL WRIT PETITION NO.1980 OF 2010 WITH CRIMINAL WRIT PETITION NO.1981 OF 2010 Goldstar Jewellery India Pvt. Ltd. ... Petitioner. V/s State of Maharashtra & Anr. .... Respondents. Mrs. M.M. Dave for the Petitoner. Mrs. Sheela Tambe i/b Mr. Manoj Bhatt for Respondent No.2. Mr. D.R. More, APP for the State. CORAM: V.M. KANADE, J. DATE : 19th November, 2010 2 CRWP1978/10 TO CRWP 1981/10 P.C:- 1. Heard the learned Counsel appearing on behalf of the Petitioner and the learned Counsel appearing on behalf of Respondent No.2. 2. Petitioner – original complainant has filed this Petition challenging the judgment and order passed by the Sessions Court in Criminal Revision Application filed by Respondent No.2, challenging the order of issuance of process passed by the learned Metropolitan Magistrate in a complaint filed under section 138 of the Negotiable Instruments Act. 3. Brief facts are that the Petitioner is a Company registered under the Companies Act and is carrying on business of selling gold and jewelery ornaments. The complainant was given cheques by the respondent – accused and the said cheques, when they were deposited in the bank, came to be dishonoured. After the statutory notice was served on the accused, payment was not made within time and, therefore, a complaint was filed in the Trial Court. Process was issued. This order of issuance of process was challenged by the original accused No.2 i.e Respondent No.2 herein in the Sessions Court. Sessions Court allowed the Revision Application and, therefore, present Petitions have been filed by the original complainant. 3 CRWP1978/10 TO CRWP 1981/10 4. The learned Counsel appearing on behalf of the complainant submitted that the Trial Court had erred in holding that necessary averments which are required to be made for making the Director vicariously liable are not made in the complaint. She invited my attention to the complaint filed by the complainant and submitted that specific averments were made in the said complaint. She submitted that, therefore, the order passed by the Sessions Court was liable to be set aside. 5. On the other hand, the learned Counsel appearing on behalf of Respondent No.2, invited my attention to the judgment of the Apex Court in National Small Industries Corporation Limited vs. Harmeet Singh Paintal and another1 and more particularly para 12 and para 25 of the said Judgment of the Apex Court. She submitted that specific role was not attributed to accused i.e. Respondent No.2 herein. She submitted that Respondent No.2 is a house wife and is not concerned with day-to-day affairs of the Company. Moreover, her specific role also has not been mentioned. 6. After having heard both the Counsel at length, in my view, there is much substance in the submission made by the learned Counsel for the Petitioner. Perusal of the complaint clearly indicates that specific averments have been made by the complainant for the purpose of pointing 1 1(2010) SLT 593 = (2010) 3 SCC 330. 4 CRWP1978/10 TO CRWP 1981/10 out the role of Respondent No.2. It is also specifically averred that Respondent No.2 was responsible for day-to-day affairs of the accused – company. 7. In the complaint, in paragraphs 4 and 5, following averments have been made. “4. The Accused No.1 is having business under the name and style of M/s Akshaj Jewels Pvt. Ltd having its office at the address stated above in the cause title and Accused Nos. 2 and 3 are the Directors of the same and are equally, jointly and severally responsible for the day-to-day affairs of the Accused Company named above, as provided u/s. 141 of the Negotiable Instruments Act.” “5. The Complainant had business transactions with all the Accused. In the course of the said business, the Complainant had raised invoices against the Accused. The Complainant craves leave to rely upon and to refer to the said invoices and the ledger extracts reflecting the said transactions as and when produced.” 5 CRWP1978/10 TO CRWP 1981/10 In my view, the said averements are sufficient for the purpose of attracting provisions of section 141 of the Negotiable Instruments Act and, therefore, the learned Magistrate was justified in issuing process. In the present case, accused No.1 is a Private Limited Company and accused Nos. 2 and 3 are Directors of the said Company. Accused No.3 had signed the cheques. It appears that there are only two Directors of the said Company and personal notice was given to both the Directors. In the present case, the accused – Company is not a Public Limited Company where, normally, there are several Directors and these Directors are not in a position to know the activities carried out by other Departments. Under these circumstances, ratio of the judgment on which reliance is placed by the learned Counsel appearing on behalf of the Respondent No.2, in my view, will not apply to the facts of the present case. The impugned order passed by the Sessions Court, therefore, is liable to be set aside. 8. All these Writ Petitions, therefore, are allowed in terms of prayer clause (a). Respondent No.2, however, is exempted from appearing in Trial Court. Plea of Respondent No.2 may also be recorded through her advocate. Her statement under section 313 of Cr.P.C may also be recorded through her advocate provided she gives an undertaking that she will not dispute her identity and that she will not dispute 6 CRWP1978/10 TO CRWP 1981/10 correctness of the answers given through her advocate. Trial Court shall follow the procedure laid down under section 313(5) of Cr.P.C. If the advocate appearing on behalf of Respondent No.2 does not remain present on two dates then, in that event, exemption granted to Respondent No.2 may be cancelled. Hearing of the Trial is expedited. The learned Magistrate may decide the case expeditiously within a period of six months. 9. Petitions are accordingly allowed and disposed off. V.M. KANADE, J.