CR.MA/5878/2008 1/3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 5878 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= KISHAN KUMAR MODI - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MR RAMNANDAN SINGH for Applicant(s) : 1, MR RC KODEKAR APP for Respondent(s) : 1, MR PRABHAV MEHTA FOR NANAVATI ASSOCIATES for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 05/09/2008 ORAL JUDGMENT 1. RULE. Mr.R.C.Kodekar, learned Additional Public Prosecutor waives the service of notice of rule on behalf of the respondent No.1 – State and Mr.Prabhav Mehta, learned advocate waives the service of notice of rule on behalf of the respondent No.2 – original complainant. 2. With the consent of the learned advocate appearing on CR.MA/5878/2008 2/3 JUDGMENT behalf of the respective parties, the petition is taken up for final hearing. 3. By way of this petition under Sec.482 of the Code of Criminal Procedure, the petitioner – original respondent No.4 has prayed for appropriate writ, order and/or direction to quash and set aside the order dtd.5/2/2008 passed by the learned Metropolitan Magistrate, Court No.13, Ahmedabad in Criminal Case No.281 of 2008 issuing process for the offences under sec.138 of the Negotiable Instruments Act, 1881. 4. It is the contention on behalf of the petitioner that the cause of action to file complaint under sec.138 of the Negotiable Instruments Act, arose in the month of July, 2007 and admittedly the petitioner resigned as Managing Director / Director of the Company on 25/1/2007 and therefore, it is submitted that even at the time when the cause of action to file the complaint had arisen, the petitioner was neither Director nor Managing Director of the Company by whom the cheque in question was alleged to have been issued. Therefore, it is requested to quash and set aside the process issued by the trial court. 5. Mr.Prabhav Mehta, learned advocate appearing on behalf of the respondent No.2 – original complainant has fairly conceded by submitting joint purshish signed by the petitioner as well as the respondent No.2, which is ordered to be taken on record, that the petitioner is arraigned as an accused No.4 in the complaint by mistake and on the basis of the earlier search report. However, he has fairly admitted that at the relevant time when the cause of action had arisen, the petitioner was neither Director nor Managing Director, and, therefore, he CR.MA/5878/2008 3/3 JUDGMENT cannot be held liable under sec.142 of the Negotiable Instruments Act. 6. Having heard the learned advocate appearing on behalf of the respective parties and considering the above, when the petitioner was neither Director nor Managing Director when the cause of action to file the complaint had arisen, there is no question of his liability as contemplated under sec.142 of the Negotiable Instruments Act and therefore, he cannot be liable under sec.142 of the Negotiable Instruments Act. Even otherwise, as per the joint purshish, the process issued against the petitioner in the complaint in question requires to be quashed and set aside. 7. For the reasons stated above, the application succeeds. The order dtd.5/2/2008 issued by the learned Metropolitan Magistrate, Court No.13, Ahmedabad in Criminal Case No.281 of 2008 issuing process against the petitioner under sec.138 of the Metropolitan Magistrate, Court No.13, Ahmedabad in Criminal Case No.281 of 2008 is hereby quashed and set aside qua petitioner herein – original accused No.4 only. Rule is made absolute accordingly. [M.R. SHAH, J.] rafik