1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3809 OF 2009 Bharat Mathur. ... Applicant. V/s. Bharat Sanchar Nigam Ltd. and Anr. ... Respondents. Mr. Dave i/b. Dave & Co. for the Applicant. Mr. Narendra C. Patel for the Respondent. Ms. P.P. Bhosle, APP for the State. CORAM : S.C. DHARMADHIKARI,J. DATED : 20th JANUARY 2010. P.C. :- The only argument on behalf of the Applicant/Accused is that the Applicant cannot be prosecuted for the offences punishable under Section 138 r/w. 141 of the Negotiable Instruments Act. 2. It is urged that the complaint does not recite that the Applicant was in charge of and responsible for the business of the Company M/s. Data Access India Ltd. Further, in any event, the Applicant had resigned as a Vice President (Corporation Services) of this Company. 3. The B.S.N.L. which is the Complainant in this case had filed a Complaint alleging offences punishable under the aforementioned provisions arraigning only the Applicant before me as an Accused. It is stated that the Company had business with B.S.N.L. and during the course of the business, 2 monthly bills for nearly 20,48,43,857.27/- were raised by the B.S.N.L. - Complainant. The Accused paid some amounts and for the balance issued the subject cheques, which were presented and dishonoured on the ground that the funds were insufficient. A notice was sent by the Complainant which was replied by the Applicant/Accused through his Advocate and the copy of the reply is annexed by the Applicant himself at Annexure ‘C’ to this Application itself. Paragraphs 2,3,4 and 5 of this letter read thus :- “2. Further, please note that you are in contravention of the contractual/mutual understanding between yourself and our client that the Cheques would be presented by you only after our client receives fresh funding from certain investors. Our client had also agreed that it would provide you with notice of this investment event as soon as the same occurs, to help you to present the Cheques for payment. Therefore, the pre-condition to your presenting the cheques for encashment was the receipt of the fresh funding by our client. Despite the foregoing, you, in sheer disregard of the explicit understanding with our client, presented the Cheques for encashment without waiting for the issue of the notice by our client or informing our client of the presentment of the Cheques. The act of presentment of the cheques by you for encashment is therefore in contravention of the mutual 3 understanding arrived at between you and our client, for which our client reserves its rights to seek appropriate remedy. 3. This is to further inform you that our client is already under discussions with the corporate office of your client for the re-scheduling of their dues and the above mentioned amounts are part of such rescheduling proposal. We therefore call upon your client to refrain from presenting any further cheques for encashment. 4. In any case, please note that your client has already invoked four bank guarantee worth Rs. 10,00,00,000.00 furnished by our client to your client well within the period of 15 days of receipt of the Notice by our client. The bank guarantees invoked by your client alongwith the date of invoking are as under. ______________________________________________________________ Sr. No. Bank Guarantee Date of Date of Amount (in Rs.) (i) 02377 02.09.02 30.08.04 2,00,00,000.00 (ii) 02400 03.10.02 30.08.04 5,00,00,000.00 (iii) 04210 18.08.04 30.08.04 3,00,00,000.00 (iv) 0453 16.04.04 06.06.04 3,40,00,000.00 13,40,00,000.00 ______________________________________________________________ 4 5. Since your client has already received the monies payable under the cheques by invoking the bank guarantees, our client is not under any obligation to pay the amount of Rs.12,07,06,171.00 or any part thereof, to your client within the period of 15 days stated in the Notice or even otherwise. That being so, no offence under Section 136 read with Section 141 or 142 of the Act has arisen or accrued as as such the Notice is ineffective and warrants immediate recall.” 4. Despite all this material and a letter addressed to the complainant, by this very Applicant/Accused, Mr. Dave would like to hold that the complaint does not disclose any offence. He wants me to hold that beyond stating that the Applicant was responsible for and in charge of the affairs of the Company and its business, the complaint does not disclose as to how the Applicant is involved in the commission of the offence. 5. I am unable to accept these contentions. From the reply to the statutory notice it is clear that, at the relevant time, it is the Applicant who negotiated for settlement with the complainant for and on behalf of the Company. It is he who made the offer that the entire dispute will be settled. The inherent jurisdiction of this Court is not to be exercised to assist persons like the present Accused, who would like the 5 Court to hold that the complaint must contain a statement of their day to day role and responsibility despite their involvemente being so specific and clear. In such cases, the Supreme Court decisions relied upon are of no assistance. In those cases, the Supreme Court quashed the proceedings because the complaint and the other materials produced did not demonstrate even prima-facie that the concerned Accused were in charge of and responsible for the Company’s business. 6. In the present case, the complaint and other materials including the reply to the statutory notice and other letters make out a prima-facie case of the Applicant’s involvement in the offence. His explanation is on merits and has no bearing at this prima-facie stage. Thus, there was enough material for issuance of process against him. 7. In these circumstance, the Application does not make out any case for interference in this Court’s inherent jurisdiction. The Application is dismissed. (S.C. DHARMADHIKARI,J.)