1 (crim appln 1690 of 2009) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1690 OF 2009 Vandana Dangi ...Applicants vs. Bhairav Enterprises & Anr. ...Respondents ----- Mr.M.S. Bharadwaj for the Applicants Mr.S.V. Marwadi i/b. Mr. V.V. Katti for Respondent No. 1 Mr.A.S.Shitole-APP for the State ----- CORAM: V.M. KANADE J. DATED: 6TH SPETEMBER, 2010 P.C. 1. Heard the learned Counsel appearing on behalf of the Applicant. 2. The learned Counsel appearing on behalf of the Applicant submits that the Senior Counsel Shri Gupte is not available today and, therefore, the matter should be kept on 9 th September, 2010. 2 (crim appln 1690 of 2009) 3. Application for adjournment is not granted. 4. The Applicant is the original Accused, who is filed this application for quashing the order of issuance of process passed by the Learned Magistrate on a complaint filed by the Respondent No.1 under section 138 of the Negotiable Instruments Act. 5. Firstly, it is submitted that the Applicant had resigned from the company as a director in 1997 and an intimation was given to the ROC immediately thereafter. It is submitted that the cheque in question was issued in 2000 and, therefore, the Applicant could not be held liable for issuance of the said cheque. Secondly, it is submitted that the account from which the said cheque was issued, was already frozen by the Income Tax Department and, therefore, the Applicant could not be held liable under section 138 of the Negotiable Instruments Act. 3 (crim appln 1690 of 2009) 6. On the other hand, Shri Marwadi, the learned Counsel appearing on behalf of the Respondent No.1 submits that the other co-accused in the complaint had filed a criminal application in the Court vide Criminal Application No.1874 of 2005 and the said application was dismissed by Justice Shri B.H. Marlapalle on 3 rd July, 2007 on the ground that the plea had already been recorded. He submitted that an incorrect statement has been made by the Applicant in this application in paragraph 6(g) that the issue of dishonour of cheque for the reason of A/c. frozen was not raised in the said petition at all. He invited my attention to the memo of the said Petition No.1874/2005 and also invited my attention to the ground (d), in which a specific averment was raised by the Applicant herein that her account was frozen by the Income Tax Department. 7. On the other hand, Shri Bharadwaj, the learned Counsel for the Applicant has denied this fact. This 4 (crim appln 1690 of 2009) issue was not argued in the said application since the application was dismissed only on the ground that the plea was recorded by the Trial Court. 8. In my view, it is not possible to accept the submission made by the Learned Counsel for the Applicant. So far as the issue of resignation of the Applicant as a director is concerned, the Respondent No.1 have disputed this fact and since this is a disputed question of fact, it cannot be decided in an application filed under section 482 of the Cr.P.C. So far as the second submission regarding account being frozen by the Income-tax Department is concerned, that issue also will have to be proved by the Applicant during the trial, either by cross-examination of the complainant or by examining an independent witnesses and, therefore, it will not be possible to accept the second submission also. Thirdly, the fact remains that an application filed by another accused has already been rejected by Brother Shri B.H. Marlapalle J. on 5 (crim appln 1690 of 2009) 3 rd July, 2007 in Criminal Application No. 1874/2005 on the ground that the plea of the accused is already recorded. 9. That being the position, even otherwise, it will not be possible to interfere with the order of issuance of process passed by the Learned Metropolitan Magistrate. Hence, there is no merit in the submissions made by the Learned Counsel for the Applicant. Application is rejected. 10. The Applicant, however, is exempted from appearing in the trial court and even on the statements under section 313 of Cr.P.C. may be recorded through her advocate provided that the Applicant shall give an undertaking that she will not dispute the correctness of the answers recorded in the statements under section 313 of Cr.P.C. Secondly, if her advocate does not appear and does not co-operate with the Learned Magistrate, in that event, 6 (crim appln 1690 of 2009) appropriate orders may be passed by the Learned Magistrate for securing her presence. The trial is expedited. The learned Magistrate is directed to complete the trial as expeditiously as possible and,in any event, within a period of six months. 12. All contentions raised by the Applicant in this application are kept open and the same shall be decided by the Learned Magistrate on merits and in accordance with law. (V.M. KANADE J.)