1 APPLN 2091.10.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE JURISDICTION CRIMINAL APPLICATION NO.2091 OF 2010 Mr. Vinay Maloo ... Applicant. V/s. Fortune Credit Capital Limited and anr.... Respondents. WITH CRIMINAL APPLICATION NO.2092 OF 2010 Mr. Sanjeev Agarwal ... Applicant. V/s. Fortune Credit Capital Limited and anr.... Respondents. WITH CRIMINAL APPLICATION NO.2093 OF 2010 Mr. Hemant Sachette ... Applicant. V/s. Fortune Credit Capital Limited and anr.... Respondents. WITH CRIMINAL APPLICATION NO.2141 OF 2010 Mr. R.K. Gupta ... Applicant. V/s. Fortune Credit Capital Limited and anr.... Respondents. Mr. H. Rehman i/by M/s. D.H. Law Associates, Advocates for the Applicants. 2 APPLN 2091.10.sxw Mr. Anop Sharma for respondent no. 1. Mr. D.R. More, APP for the State. CORAM : K.U. CHANDIWAL, J. DATED : 15th SEPTEMBER 2011. P.C. :- Heard. 2. The Petitioners question process issued by the learned Additional Metropolitan Magistrate, 33rd Court at Ballard Pier, Mumbai in Criminal Complaint No.11143/SS/2009, arising out of proceedings under Section 138 of Negotiable Instruments Act. All the Petitions are heard together as the exception taken is common. 3. Enso Oil Pvt. Ltd. (Original Accused No.1) had obtained financial facilities from Respondent No.1 Fortune Credit Capital Ltd. In discharge of the said liabilities, two cheques amounting Rs.35,00,000/- and Rs.33,57,742.46 were issued which on presentation were dishonoured. Statutory notice of demand resulted in failure and hence, the above referred complaint. 4. In the complaint, the Applicant Vinay Maloo is referred as Chairman, Mr. R.K. Gupta as President, Mr. Hemant Sachetee, (Accused No.4) as Vice President, while Deepak Bhandari, Sanjeev Agrawal and Hanuman Mal Tater are indicated to be authorized signatories. 3 APPLN 2091.10.sxw 5. The learned Counsel for the Applicants submit that the Applicant Vinay Maloo is not Chairman of the said Society. He has resigned long back. 6. On going through the complaint and record, I find that specific averments are made about involvement of the Petitioners. Paragraphs 3 to 5 of the complaint reads as under :- "3. The accused vide letter dated 15th September, 2008 approached the Complainant Company for the purposes of obtaining Demand Loan/Line of Credit facility upto Rupees Ten Crores only more particularly for the purchase of Asian Oil Fields Scripts. Accused Nos. 2, 3 and 4 are the Chairman, President and Vice President respectively of the accused no. 1 Company, who along with other accused were actively involved at the time of representation before the complainant Company for the purpose of obtaining said Demand loan/Line of Credit Facility and also for the purchase of Asian Oil Fields Scripts. For the same the Accused abovenamed executed loan documents, Master Financing agreement, promissory note and also provided extracts from Minutes of Meeting of Board of Directors and certified copy of Board Resolution passed in Accused No. 1 Board meeting held on 4th 4 APPLN 2091.10.sxw September, 2008 authorizing Accused no. 8 as an Authorized Person - countersigning the Master Financial agreement as token thereof, Accused no. 7 being the Authorized Signatory and Accused no. 5 and 6 as Director of the No. 1 Company holding Accused Nos. 2 to 9 to be responsible persons for handling the day to day affairs of Accused no.1 Company and to do such other acts as enumerated in the said extracts of Minutes of Meeting and certified copy of Board Resolution. The Accused nos. 7 and 9 are the authorized signatories to the present cheques in question. Hereto annexed and marked as EXHIBIT "B" is the copy of letter dated 15th September, 2008 addressed by the Accused to the Complainant Company. Further, hereto annexed and marked as EXHIBIT "C" and "D" are the copies of Extracts from Minutes of Meeting of Board of Directors of Accused No. 1 dated 10th September, 2008 and certified copy of Board Resolution passed in Accused No. 1 Board Meeting held on 4th September, 2008. 4. The Accused Nos. 2 to 9 are the Chairman, President, Vice President, Associated Vice President, Chief Financial Officers, Directors, Authorized persons, Authorized Signatory/responsible persons of Accused no. 1 company and who at all relevant times are in- 5 APPLN 2091.10.sxw charge of the day to day affairs of the Accused No. 1 Company at the relevant time when the offence was committed. The present offence was committed with the knowledge, consents and is in connivance with the Accused nos. 2 to 9 abovenamed. The abovenamed all the Accused are fully responsible for the offence committed by Accused No. 1 Company and the present offence is attributable to the neglect on the part of the Accused Nos. 2 to 9 abovenamed. 5. The Complainant states that as per the request, undertaking and assurances by Accused no. 1 through Accused nos. 2 to 9, the complainant Company sanctioned and disbursed the maximum Demand Loan/Line of Credit Facility of Rupees Four Crores Ninety Four Lakhs (Rs.4,94,000/-) and the same was utilized by the accused for the purposes of purchasing of Asian Oil Field Scripts with the Complainant's assistance. Towards the said Demand Loan/Line of Credit Facility, the Accused executed Master Financing Agreement and Promissory Note. The complainant craves leave of this Hon'ble Court to refer and rely upon the Master Financing Agreement and Promissory Note executed by Accused and undertakes to produce the same as and when called for by this Hon'ble Court." 6 APPLN 2091.10.sxw The name of Chairman was even indicated at Website provided by the Company. Surreptitious removal thereof will not dilute the primary liability of the Chairman who was actively involved in entering correspondence for financial facilities. He even presided over meetings of the Company referring him as Chairman. It was disputed that he did not preside over such meetings. However, the Petitioner then did not advert who presided over the said meetings. The factum of resignation as Chairman or Director, requires evidence and will not tantamount to ceaser from the position. The question of fact raised by the Applicant can not be adjudicated in an application under Section 482 of Cr.P.C. as the fact require proof in accordance with law during trial. 7. The primary liability of the Applicant in terms of Section 141 of Negotiable Instruments Act is stated in the complaint as referred herein before. 8. The Applicant Vinay Maloo was actively involved since inception of Respondent No.1 – dealing with financer. Even extension of time to repay, during the schedule of repayment was made at the behest of the Applicant. SMS of the Managing Director or the Applicant illustrate seeking extension of time from the financer. One of such SMS reads as under :- " Sir, I am still hopeful for tom. In any case, Malooji has set another alternative which will happened between 3rd Aug. to 10th Aug." 7 APPLN 2091.10.sxw 9. In the Minutes of Meeting of Board of Directors, held on 4th September 2008, it was resolved as under :- "THAT the standard draft of the Agreement for Demand Loan/Line of Credit facility received from FCCL in this connection (a copy whereof duly signed by the Chairman for identification was placed on the table of the meeting) be and is hereby approved and the Directors of the Company be and are hereby severally authorized to accept and sign singly on behalf of the company such modifications therein as may be acceptable to FCCL. THAT the Common Seal of the Company be affixed to the fair stamped engrossments, in duplicate, of the said Agreement on the lines of the said draft (with such modifications therein as may be agreed to between FCCL and the Company) in the presence of any two of the Directors of the Company, who do sign the same in token thereof and Mr. Sanjeev Agarwal Authorized Person, who do counter-sign the same in token thereof." The list of signatories include Hanuman Mal Tater, Vinay Maloo and Ashok Kumar. At stage of process, there was sufficient material against the Applicants except Mr. R.K. Gupta. There 8 APPLN 2091.10.sxw are no such uncontraverted documents with the Applicants relating to Applicants to be dormant or has resigned. At the stage of process, learned Judge was satisfied with averments in complaint implicating the Applicants. 10. The Contention of no active role played by the Applicant is difficult to digest However, so far as Applicant Mr. R.K. Gupta in Application No. 2141 of 2010 is concerned, a statement is made on 20th August 2011 by the Complaint, that it will not prosecute the remedies against said Director. The statement is accepted. The questioned proceedings would naturally be dropped to the extent of Mr. R.K. Gupta in Application No.2141 of 2010. Petition Nos.2091 of 2010, 2092/10 and 2093/10 are dismissed. Petition No.2141 of 2010 is allowed. (K.U. CHANDIWAL,J.)