Ndm 1 appln.4522.02.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 4522 OF 2002 Mrs. Sarla Rashmikant Doshi and ors. ... APPLICANTS Vs. The State of Maharashtra and anr. ... RESPONDENTS -------------- Mr. Suboth Desai, Advocate for Applicants. Mrs. A.A.Mane, APP for State. -------------- CORAM : V.R. KINGAONKAR, J. DATE : 25 rd September, 2009. ORAL JUDGMENT 1 By this application, filed under Section 482 of the Criminal Procedure Code, the applicants seek quashing of criminal complaint bearing C.C.No. 220/S/2002 pending on file of Metropolitan Magistrate 34 th Court Vikhroli, Mumbai. 2 The Respondent No.2 is original complainant. He filed the private complaint case for offence punishable under Section 138 of the Negotiable Instruments Act. The original accused No.1-M/s. Pharmacom Ndm 2 appln.4522.02.sxw (India) Limited is a public limited company. 3 Briefly stated, the case of Respondent No.2 (complainant) is that the accused No.1 obtained loan of Rs.5,00,000/- from him for the purposes of its business. Accused Nos. 1 to 7 issued a cheque dated 11.04.2001 for a sum of Rs.5,00,000/- towards discharge of the liability to pay the said amount. They informed him that the cheque may be presented in the month of August, 2001 and the amount would be made available in their bank account. He deposited the cheque with the bank for encashment on 29 th August, 2001. The cheque was dishonoured and returned to him. He issued demand notice, which was returned unclaimed. Hence he instituted the private complaint case. 4 The applicants are the original accused Nos. 3, 4 and 6. They would submit that they are unconcerned with the issuance of cheque in favour of the complainant (respondent No.2). They would further submit that they had resigned from the directorship before issuance of the said cheque. They were not in-charge of the business of the accused No.1 – Company and were not doing the business thereof. Ndm 3 appln.4522.02.sxw Consequently, they seek quashing of the criminal complaint instituted against them. 5 Heard learned counsel for the applicants and learned APP for respondent No.1 – State. None appears for the respondent No.2 (complainant). 6 At the outset, it may be noticed that the averments in the complaint do not show as to whether the applicants are persons in- charge of the business of the accused No.1 – Company and are responsible for the conduct of its business. The averments in the complaint also do not show whether either of the applicants is signatory of the said cheque in question. The respondent No.2 is not sure whether the accused No.1 is a company incorporated or is a partnership firm. The averments in paragraph Nos. 1 and 2 of the complaint would make it amply clear that the respondent No.2 asserted that the applicants are directors and partners of the firm. It is further asserted that the accused No.1 is the firm. However, the applicants have come out with a case that the accused No.1 is the company incorporated, they have filed copy of Ndm 4 appln.4522.02.sxw the form No.32 in order to show that they resigned as directors and their appointment as such came to be terminated w.e.f. 24 th February, 2001. There is no reply filed by the respondent No.2 (complainant). Obviously, the averments in the application will have to be taken as uncontroverted. 7 The averments in the application would show that the applicants were made non executive directors of the company and the affairs of the company were being looked after only by Mr. Rashmikant Doshi, who happens to be the husband of the applicant No.1. Unless there is some prima facie material to indicate complicity of the applicants, criminal prosecution against them would not be maintainable. The applicants are not shown to be persons in-charge of the business of the accused No.1 – company nor it is demonstrated that they are responsible for the conduct of its business. There is also no material on record to infer that the applicants were served with demand notices containing certain allegations against them. The verified statement of the complainant does not shed any light on the issue pertaining to complicity of the applicants. It is well settled that in order to attract provisions of Ndm 5 appln.4522.02.sxw Section 141 of the Negotiable Instruments Act, the complainant is required to specifically aver as to how the directors are responsible to answer the criminal charge. Mere sweeping allegations that the accused persons are directors of the company would not suffice the purpose. 8 For the reasons aforestated, I have no hesitation in holding that the complaint case to the extent of the applicants is liable to be quashed. They deserve exoneration from the criminal liability. Hence, the application is allowed. The proceedings of the criminal case bearing C.C. No. 220/S/2002 are quashed only to the extent of the applicants. There names shall be struck out from the array of the accused. [ V.R. KINGAONKAR, J ]