IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPLICATION NO.3134 OF 1998. APPLICATION NO.3134 OF 1998. APPLICATION NO.3134 OF 1998. Kamal Singh Sokhi. ..Applicant. versus Kirloskar Investment & Finance Ltd. & Anr. ..Respondents. .... Mr. Subhash Jha, for the Applicant. Mr. J.P.Yagnik, APP, for the Respondent - State. None present for the Respondent No.1. .... CORAM CORAM CORAM : A.S. OKA, J. : A.S. OKA, J. : A.S. OKA, J. DATE DATE DATE : 11TH AUGUST,2008. : 11TH AUGUST,2008. : 11TH AUGUST,2008. ORAL ORAL ORAL JUDGMENT : JUDGMENT : JUDGMENT : 1. Heard the learned Counsel appearing for the Applicant. The Applicant has been arraigned as Accused No.4 in a complaint filed by the first Respondent under section 138 of the Negotiable Instruments Act, 1881. Process was issued against the Applicant and other accused. The prayer in this Petition is for quashing the order issuing process. 2. In a normal course, this Court would have relegated the Applicant to the remedy of filing a Revision Application under Section 397 of the Code of - 2 - Criminal Procedure, 1973. However, in this Application, rule has been issued on 14th October 1998 and since then the Application has been pending in this Court. Therefore, it will be unjust to the parties to relegate them to another remedy after lapse of nearly ten years. 3. The learned Counsel appearing for the Applicant has taken me through the relevant averments made in the complaint filed by the first Respondent. He pointed out that on the basis of the averments made in the complaint which are very vague, section 141 of the said Act, 1881 could not have been invoked. None appears for the first Respondent though the notice is served. 4. I have carefully considered the submissions. The only material averments made in the complaint filed by the first Respondent are in paragraph nos. 2 and 3 thereof which reads thus :- "2. That accused No.1 is a Public Limited Company, registered under the Companies Act, - 3 - 1956, and accused No.2 is Chairman and Managing Director, accused No.3 and 4 are the Directors of the said Public Limited Company. Accused’s are carrying on the business at the address mentioned hereinabove. 3. That during the course of the business accused No.2 to 4 on behalf of accused No.1 approached the complainant and requested the complainant to advance an amount, for their business by way of lease finance." Apart from the fact that the first Respondent has not averred that on the day of commission of offence, the Applicant who is stated to be a Director of the first Accused- Company was in-charge of and was responsible for the conduct of the business of the Company, the role allegedly played by the Applicant has not been set out in the complaint. 5. The drawer of the cheque is admittedly the first Accused- Company. Process could have been issued against the Applicant, provided necessary - 4 - ingredients ingredients ingredients of Section 141 of the said Act of 1881 of Section 141 of the said Act of 1881 of Section 141 of the said Act of 1881 were were were made out in the complaint by the original made out in the complaint by the original made out in the complaint by the original Complainant. Complainant. Complainant. 6.6.6. In In In the circumstances, the Application must the circumstances, the Application must the circumstances, the Application must succeed. succeed. succeed. I pass the following order :- I pass the following order :- I pass the following order :- (1) (1) (1) Rule is made absolute in terms of prayer Rule is made absolute in terms of prayer Rule is made absolute in terms of prayer clause clause clause (a). (a). (a). [ A.S.OKA, A.S.OKA, A.S.OKA, J.] J.] J.]