1 (WP 614/10 with WP 615 to 620 of 2010) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.614 OF 2010 ALONGWITH CRIMINAL WRIT PETITION NO.615 TO 620 OF 2010 Mrs. Pooja Ravinder Devidasani ..... Petitioner. V/s State of Maharashtra & Anr. ..... Respondents. Mr. V.S. Kotwal with Ms. Sapana Rachure i/b M/s. T.N. Tripathi & Co. for the petitioner. Mr. Yashpal Thakur i/b M/s Paras Kuhad & Associates for Respondent No.2. Mrs. M.R. Tidake, APP for the State. CORAM: V. M. KANADE, J. DATE : 6th October, 2010 P.C.:- 1. All the above Writ Petitions are being disposed of by this common order as the facts and issue involved in the same are similar. 2. Heard the learned Counsel appearing on behalf of the Petitioner, the learned Counsel for Respondent No.2 and the learned APP for the State. 2 (WP 614/10 with WP 615 to 620 of 2010) 3. Petitioner in these Petitions is challenging the order of issuance of process passed by the learned Metropolitan Magistrate’s 58th Court, Bandra, Mumbai on the complaints filed by Respondent No.2 under section 138 read with section 141 of the Negotiable Instruments Act, 1881. 4. Brief facts are as under:- 5. Respondent No.2 is a Finance Company registered under the Companies Act and provides financial assistance to the Industrial Enterprises. Petitioner herein is an original accused No.3. Respondent No.2 filed complaints against M/s Elite International Pvt. Ltd. and its Directors including the petitioner herein. In the said complaints it has been alleged that accused No.2 to 5 approached them for trade finance facility and, accordingly, the said facility was granted to the accused and towards discharge of the said liability and towards repayment of the said finance, the accused issued 20 cheques, all drawn on ICICI Bank Ltd. All the cheques were dishonoured when Respondent No.2 deposited them in their bank and, therefore, a statutory demand notice was given to accused No.1 and all its Directors individually and upon non-payment of the amount after receipt of the notice, the said complaints were filed and the learned Magistrate was pleased to issue process in the said complaints. 3 (WP 614/10 with WP 615 to 620 of 2010) 6. The learned Counsel appearing on behalf of the Petitioner submitted that the Petitioner was appointed as a non-executive Director of accused No.1 – Company on or about 01/07/2004. He submitted that, however, she resigned as a Director with effect from 17/12/2005. It is submitted that the resignation of the Petitioner was taken on record at the Board Meeting of accused No.1 – Company on 17/12/2005. Thereafter, relevant Form No.32 was filed by the accused No.1 – Company on 20/12/2005 with the Registrar of Companies. It is her case that she is a house wife and, even during her tenure as a Director, she was not responsible for the conduct of the business and day-to-day affairs of accused No.1 – Company. Reliance is also placed on the judgment of the Apex Court in Sate of NCT of Delhi through Prosecuting Officer, Insecticides, Government of NCT, Delhi vs. Rajiv Khurana1 7. The learned Counsel appearing on behalf of Respondent No.2 submitted that so far as argument in respect of resignation of the Petitioner is concerned, the said fact has been disputed by the complainant and, therefore, the said issue could be decided only at the time of trial after proving the documents on which reliance has been placed by the Petitioner. 8. So far as the question of resignation of the petitioner is concerned, since this is a disputed question of fact, it will 1 Criminal Appeal No.1380 of 2010 arising out of SLP (Crl.) No.7739 of 2008 4 (WP 614/10 with WP 615 to 620 of 2010) have to be decided by the Trial Court after evidence is adduced by both parties and after the Petitioner proves the documents on which reliance is placed by her. So far as the question of insufficient averments in the complaints are concerned, in my view, perusal of the complaints clearly indicates that necessary averments are made in the complaints in order to attract the provisions of section 138 read with section 141 of the Negotiable Instruments Act, which can be seen from the following paragraphs in the complaints viz paragraphs Nos. 1, 4 and 5 which are reproduced hereinbelow:- “1. I say that the accused No.2 to 5, on behalf of accused No.1 have approached us with request for trade finance facility and accordingly the said facility has been granted by us to the accused as per their request and requirement.” “4. I say that Accused No.1 is private limited company of which accused No. 2, 3 & 5 are directors and accused No. 4 is the director & authorized signatory of accused No.1 M/s Elite International Pvt. Ltd. - Imprest. At all material time relevant and relating to the complaint 5 (WP 614/10 with WP 615 to 620 of 2010) Accused No. 2 to 5 were and are in charge of and responsible for the conduct of business of Accused No.1 and are also looking after day to day affairs of Accused No.1. It is further submitted that Accused No. 2 to 5 with Accused No.1 are liable to be prosecuted and / or connived in the commission of the present offence, in their capacity as a Directors/signatory of the said private limited company.” 5. I say that as narrated in para 4 accused No.2 to 5 being responsible for the affairs of Accused No.1 i.e private limited company are liable to be prosecuted for having committed a criminal offence in the event of failure on their part to comply with the requisitions contained in the statutory notice dtd. 03/11/08, which were sent to them both under R.P.A.D. & U.P.C. on 06/11/08. I say that notice was received by all the accused on or about 08/11/08 and notice sent through U.P.C. are deemed to have been served. However, accused have failed 6 (WP 614/10 with WP 615 to 620 of 2010) and neglected to make our payment under the above said dishonoured cheques.” From the aforesaid averments, it can be seen that the role of the Petitioner who is the original accused No.3 is clearly reflected in the said averments and it is also specifically mentioned that the Petitioner and the other Directors were in charge of and responsible for the conduct of the business of accused No.1 and were also looking after day-to-day business of accused No.1. It is also stated that accused are liable to be prosecuted since they had connived in the commission of the offence. 9. The legal position in this regard is quite well settled and right from the judgment of the Apex Court in S.M.S. Pharmaceuticals Ltd. vs. Neeta Bhalla & Anr.1 to the recent judgment of the Apex Court in National Small Industries Corp. Ltd. vs. Harmeet Singh2 including the judgment in Sate of NCT of Delhi (Supra)3, it has been held that the complainant has to make specific averment regarding the role of the accused and also state that they are in charge of the day-to-day affairs of the company. 10. Perusal of the complaint clearly reveals that relevant 1 AIR 2005 SC 3512 2 Criminal Appeal no.320-336 of 2010 arising out of SLP (Crl) Nos.445-461 of 2008 3 Criminal Appeal No.1380 of 2010 arising out of SLP (Crl.) No.7739 of 2008. 7 (WP 614/10 with WP 615 to 620 of 2010) averment has been made so as to make the accused vicariously liable. A specific averement is made in the complaint stating that accused were in charge of and responsible for the business of the company and by virtue of their position, they were liable to be proceeded with. There is specific averment that the Petitioner was in charge of and responsible for the conduct of the business of the company at the relevant time and this fact is specifically averred. The averments, therefore, made in the aforesaid paragraphs clearly make out a case for summoning the accused under section 141 of the Negotiable Instruments Act, 1881. In para 5 of the complaint a specific averment is made that a notice was issued to the Petitioner and it was served upon all the accused on or about 08/11/2008. Under these circumstances, submissions made by the learned Counsel appearing on behalf of the Petitioner cannot be accepted. 11. All these Writ Petitions are dismissed. Rule in each of these Petitions is discharged. Hearing of the trial is expedited. 12. Petitioner, however, is exempted from appearing in Trial Court. Her plea shall be recorded through her advocate. Her statement under section 313 also shall be recorded through her advocate as per the procedure laid down under section 313 sub-clause (5). Petitioner, however, shall give usual undertaking that she will not dispute her 8 (WP 614/10 with WP 615 to 620 of 2010) identity or the answers which are given by her advocate to the questions which are asked under section 313 of Cr.P.C. Petitioner’s advocate, however, shall cooperate with the Court and if he does not remain present on more than two dates, trial court may pass appropriate orders for the purpose of securing presence of the Petitioner. 13. It is clarified that the Trial Court shall not be influenced by the observations made by this Court in this order since these observations are made for the purpose of deciding the present Writ Petitions. The Trial Court, therefore, will have to decide the case on merits and in accordance with law. 14. At this stage, the learned Counsel appearing on behalf of the Petitioner submits that he would like to challenge this order in the Apex Court and, therefore, seeks continuation of the interim relief for a period of six weeks. Hence, interim order is continued for a period of six weeks from today. 15. All the above Writ Petitions are disposed of. (V.M. KANADE, J.) 9 (WP 614/10 with WP 615 to 620 of 2010)