1 APPLN.: 5522/2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.5522 OF 2010 Amar J. Thacker & Ors. .... Applicants (Ori. accused) Vs. The State of Maharashtra & Anr. .... Respondents Mr. Harshad Bhadbade a/w Mr.V.C. Murlidharan i/by Shashant Mangale for applicants. Mrs. V.R. Bhosale, A.P.P. Mr. Yashpal Thakur i/by M/s Paras Kuhad & Associates for respondent no.2. Coram : Smt. R.P.SondurBaldota, J. Date : 6th July, 2011 P.C. 1. The applicants herein are the directors as also the Vice President- Accounts and Finance, General Manager - Sales and Marketing and Consultant of the company by name Biotor Industries Limited. Until 2005, the company was known as Jayant Veg. Oils “ and Chemicals Pvt. Ltd . In August 2005, the name was changed ” 2 APPLN.: 5522/2010 to Jayant Oils and Derivatives Pvt. Ltd. and thereafter in June “ ” 2008, to the present name. Respondent no.2, the complainant at the instance of the company had sanctioned its trade finance facilities upto an agreegate maximum limit of Rs.18,40,00,000/- vide sanction letter No.2003/1 dated 5th September 2003. Towards the discharge of that liability, the company had issued eleven cheques, each in the sum of Rs.1,50,00,000/- to respondent no.2. When the cheques were presented for payment, the same were dishonoured and returned unpaid for the reason referred to “ drawer, A/c blocked . Respondent no.2 sent statutory demand ” notice to the company as well as its directors. Despite the service of statutory notice, the company and its directors failed to make the payment under the dishonoured cheques within the stipulated period. Therefore, respondent no.2 filed complaint being C.C. No.5973/SS/2004 against the company and its directors. The applicants herein are accused nos. 4,6 and 8 in the complaint. After the statement in verification of the complaint was recorded, the learned Magistrate issued process against all the accused on 8th June 2010. The plea of the accused persons including the applicants was recorded on 12th November 2010. Thereafter the 3 APPLN.: 5522/2010 present application was filed on 7th December 2010 to challenge the correctness and legality of the order of issuance of process. 2. The main ground of challenge to the impugned order is that the complaint is devoid of the averments necessary to hold the applicants liable under Section 141 Negotiable Instruments act. 3. The averments relating to the applicants made in the complaint read as follows: (i) The accused Nos. 2 to 8 are the Director of accused No. “ 1 and the accused no. 2 is also the signatory to the cheques in question” (ii) The accused No.2 to 8 were in charge and responsible “ for day-to-day affairs of the accused no.1 at the relevant time when the transaction had taken place between Global Trade Finance Limited and M/s Jayant Vegoils and Chemicals Private Limited (now known as M/s Biotor Industries Limited);” (iii) The accused nos. 2 to 8 were personally interacting “ with the officials of Global Trade Finance Limited for providing Trade Finance Facility to them.” (iv) Thus, the office bearers/management, i.e. the accused “ nos. 2 to 8 of M/s Biotor Industries Limited are liable to repay the Trade Finance Facilities availed by them while the name of M/s Biotor Industries Limited was M/s Jayant Vegoils and Chemicals Private Limited. and ” (v) The accused nos. 2 to 8 are the Directors of accused “ 4 APPLN.: 5522/2010 no.1. The cheques in question has been signed by the accused nos.2 on behalf of accused no.1. The accused nos. 2 to 8 were in-charge and responsible for the day-to-day affairs of the accused no.1, at the relevant time when the transaction had taken place between the complainant and accused no.1, when the subject cheques were issued to the complainant company and when the statutory demand notice was issued to the accused. All the accused nos. 2 to 8 were personally interacting with the officials of the complainant for providing Trade Finance Facilities to them. ” 4. Mr. Bhadbade, learned counsel for the applicants submits that the above averments made in the complaint would not be sufficient to connect the applicants to the offence and it was necessary for respondent no.2 to set out the details of association of the applicants to the offence. Mr. Thakur, the learned counsel for respondent no.2 submits, on the other hand, that the present application is not maintainable as the same has been filed after recording of plea of the applicants. As regards the merits, he submits that the averments in the complaint coupled with the documents relied upon by respondent no.2 are sufficient to connect the applicants to the offence. He tenders copies of several documents submitted by the company to respondent no.2 5 APPLN.: 5522/2010 for availing the trade finance facility. All the documents have been signed by applicant no.3 as the authorised signatory of the company. The applicants had also submitted certificates issued by their Bankers verifying their signatures. 5. Taking into consideration the averments made in the complaint, as regards the applicants quoted at paragraph 3 above and the documents produced by Mr. Thakur, I am of the opinion that on a prima facie view, there is sufficient material disclosed to make the applicants vicariously liable. 6. There is also substance in the submission of Mr. Thakur that the application under Section 482 for quashing of the order of issuance of process is not maintenable in view of the fact that the charge has been explained to the applicants and their plea recorded. The Apex Court in the case of Subramanium Sethuraman vs. State of Maharashtra & Anr., reported in 2004 Criminal Law Journal, page 4609 and in the case of Nikumbh Dairy Products Ltd. vs. State of Maharashtra, reported in MANU/MH/1221/2006, equivalent citation: IV(2007) BC358 has held that once plea is recorded in a summons case, it is not open to the accused persons to seek the discharge. In Subramanium s’ 6 APPLN.: 5522/2010 case, the Apex Court has observed that the case involving a “ summons case is covered by Chapter XX of the Code which does not contemplate a stage of discharge like Section 239 which provides for a discharge in a warrant case. Therefore, in our opinion, the High Court was correct in coming to the conclusion once the plea of the accused is recorded under Section 252 of the Code of the procedure contemplated under Chapter XX has to be followed which is to take the trial to its logical conclusion.” This decision has been followed by our High Court also in the case of Subhiksha Trading Services Limited vs. Kotak Mahindra Bank Limited, reported in 2010(3), Bombay C.R. (cri.), page 649. Therefore, the present application filed under Section 482 for quashing of order of issuance of process is not maintenable. 7. Thus the application fails on merits as well as maintenability and is dismissed. (Smt. R.P SondurBaldota, J)