Rule. Mr.AB Gogia, learned advocate waives service of rule for respondent No.2 and Mr.KP Raval, learned APP waives service of rule for respondent No.1 - State.
Considering the facts and circumstances of the case and with consent of both the sides, the matter is taken up for final disposal today.
The applicant, who is one of the co-accused persons in Criminal Inquiry Case No.21 of 2010 filed this application, requesting quashing of the complaint registered as Inquiry Case No.21 of 2010 in the Court of Judicial Magistrate First Class, Gandhidham for the offences punishable under Sections 420, 406, 120B r/w.Section 114 of the IPC.
Mr.Sanjay Gupta, learned advocate for the applicant submitted that, in the disputed complaint filed by respondent No.2 herein before the trial Court, the applicant is arraigned as co-accused No.6 in his capacity as one of the Directors of accused No.1 company, M/s.R.N. Infra Communications Pvt.Ltd. It is further submitted that the perusal of the criminal complaint would suggest that the cause for this criminal complaint is the bouncing of certain cheques. Mr.Gupta, learned advocate for the applicant submitted that regarding the criminal prosecution initiated by respondent No.1 herein against the company and co-accused persons, including the applicant herein, the applicant herein had filed Criminal Misc.Application No.326 of 2011 and Criminal Misc.Application No.327 of 2011 for quashing of said criminal complaints, which had arisen u/s.138 of the Negotiable Instruments Act. It is submitted that on 12.7.2011, by common judgment and order both those quashing petitions came to be allowed and my attention was drawn to the discussion made in paragraph 6 in said order, whereby this Court (Coram: M.R.Shah, J.) came to the conclusion that the very basic thing that at the relevant time, the applicant herein was Director of said company was not prima-facie established. It further transpires that form No.32 of the original accused No.1 company was considered and, ultimately, those criminal prosecutions, which had arisen u/s.138 of the NI Act came to be quashed. The copy of judgment and order dated 12.7.2011 can be retained on record.
4.1 Mr.Gupta, learned advocate for the applicant, therefore, submitted that the very object of filing this private complaint alleging the offences punishable u/ss.406 and 420 etc. of IPC is the dishonour of cheques for which a criminal complaint came to be filed u/s.138 of the NI Act and, ultimately, qua the applicant, said criminal complaint came to be quashed. It is, therefore, submitted that the application may be allowed.
Mr.Gogia, learned advocate for respondent No.2 original complainant vehemently opposed this application and submitted that mere fact that the criminal prosecution launched against the applicant herein by respondent No.2 herein for the offence punishable u/s.138 of the Negotiable Instruments Act and, subsequently, that proceeding being quashed by this Court, is not a relevant fact, which can be considered in the instant matter. It is submitted that the NI Act is a special Act, wherein a special provision is made u/s.141 of said Act and the complainant has to show that the person, who is arraigned as Director or office bearer of any company was involved in day to day business of said company, whereas in the instant matter, offences alleged are arising under the IPC and the bare perusal of the FIR would suggest that along with other accused, common accusations is levelled for the commission of offence alleged against the applicant
- original accused No.6. My attention was drawn to the case of K.Neelaveni Vs.State rep.by Inspector of Police & Ors. reported in AIR SC 3191 and the case of Dharmatma Singh Vs.Harminder Singh & Ors. reported in (2011)6 SCC 102. It is, therefore, submitted that in the matter when the Magistrate has only ordered the police investigation u/s.156(3) of the Cr.P.C., this petition is not maintainable.
Heard Mr.Raval, learned APP for respondent No.1 - State.
At the outset, it may be noted that in the criminal complaint itself (copy, Annexure-A) in paragraph 2, it has been specifically averred by the complainant - respondent No.2 herein that the accused No.6 (applicant herein) was one of the Directors of accused No.1 company. Again perusing the criminal complaint, it transpires that the allegations of the offence of cheating and criminal breach of trust punishable u/s.420, 406 of the IPC have been levelled only because certain cheques earlier allegedly issued by the accused No.1 company to the complainant came to be dishonoured and it is alleged that some promise was given at the time when the cheques were issued that the same would be honoured. It further transpires that since the cheques allegedly came to be dishonoured, the complainant initiated criminal prosecution against the accused No.1 company as well as other accused persons, including the applicant herein, alleging the offence punishable u/s.138 of the NI Act. The applicant herein filed above-referred two quashing petitions, namely, Criminal Misc.Application Nos.326 and 327 of 2011 and considering the copy of judgment and order dated 12.7.2011 delivered in said matter, and more particularly, considering the discussion made in paragraph 6 in said decision, the said discussion in paragraph 6 runs under:-
"[6.0] Heard learned advocates appearing for respective parties at length. At the outset it is required to be noted that applicant - original accused No.6 is arraigned as an accused in the aforesaid criminal cases for the offence punishable under Section 138 read with Section 141 of the N.I. Act, as Director of the original accused No.1 Company who has issued the cheques in question. Therefore, the complainant is prima facie required to establish and/or satisfy that in fact applicant was at the relevant time the Director of original accused No.1 Company. Learned advocate appearing on behalf of respondent No.2 - original complainant is not in a position to produce any documentary evidence even to prima facie establish that at the relevant time when the offence was committed, he was the Director of original accused No.1 Company. Learned advocate appearing on behalf of respondent No.2 - original complainant has relied upon the "Director's Profile" of applicant - original accused No.6 and from that it is the case on behalf of respondent No.2 that applicant was the Director of original accused No.1 Company. However, from the "Director's Profile" of applicant, it cannot be said that he was the Director of the Company, if there is no other material to show that he was the Director of the original accused No.1 Company who issued the cheque. Sometimes it might be that a "Director's Profile" is misleading and/or incorrect. However, by that only, it cannot be said that he is the Director of the Company, if otherwise he is not. From the documents produced on record by the applicant such as Form No.32 of the original accused No.1 Company and the register maintained by the Registrar of Companies of accused No.1 Company, nothing is on record that applicant - original accused No.6 was Director of the Company at any point of time, more particularly, at the time of commission of the offence under Section 138 of the N.I. Act. Under the circumstances, when the applicant - original accused No.6 was not the Director of the original accused No.1 Company at the time of commission of offence, merely on the basis of the "Director's Profile" of the applicant - original accused No.6, he cannot be prosecuted for the offence punishable under Section 138 read with Section 141 of the N.I. Act. Therefore, to conclude the criminal proceedings against the applicant - original accused No.6 would be abuse of process of law and would not be justified and therefore, this is a fit case to exercise powers under Section 482 of the CrPC and to quash and set aside the impugned criminal cases/complaints and the process issued by the learned Magistrate against the applicant - original accused No.6."
As stated above, since there was nothing prima-facie to come to the conclusion that at any point of time, the applicant herein was Director of the original accused No.1 company, said quashing petitions came to be allowed. Now, as stated above, the bare perusal of the criminal complaint, Annexure-A, would reveal that the very cause for filing the instant criminal complaint, alleging the offences punishable under Sections 406, 420 of the IPC, is again the dishonour of the cheques. It is pertinent to note that in the instant matter also, right from the pleading of the petition, it is the say of the applicant that he was not at all concerned with the accused No.1 company and he was never a Director of said company even since its inception. When this aspect of the matter has been dealt with by this Court in the order dated 12.7.2011, no more discussion is required and it can safely be stated that since the instant criminal complaint arises out of the same cause of action, namely, dishonour of cheques and since the proceedings initiated against the applicant herein u/s.138 of the NI Act came to be quashed by this Court, as discussed in paragraph 6 in said order (reproduced above), it can safely be said that this complaint also deserves to be quashed qua the applicant. Considering, the facts and circumstances of K.Neelaveni and Dharmatma Singh's case (Supra) in the facts and circumstances of said case, the Hon'ble Apex Court came to the conclusion that the High Court should not have exercised the powers conferred u/s.482 of the Cr.P.C. In the instant matter, it is pertinent to note that the bare perusal of the criminal complaint, would suggest that the cause for the instant complaint had direct nexus with the allegation that the cheques came to be dishonoured. It is further pertinent to note that while initiating the proceedings u/s.138 of the NI Act, the complainant did not allege at that point of time any offence having been committed by the accused u/ss.406 and 420 of the IPC. Subsequently, on the basis of the same cause of action, the instant criminal complaint came to be filed. Apart from that so far as the applicant is concerned, this Court in order dated 12.7.2011, clearly came to the conclusion that prima-facie there was nothing to come to the conclusion that the applicant herein (original accused No.6) was Director of the company at any point of time.
In the above view of the matter, considering the peculiar facts and circumstances of the case, the application deserves to be allowed.
For the foregoing reasons, the application is allowed and the criminal complaint being Criminal Inquiry No.21 of 2010 pending in the Court of learned Addl.C.J.M., Gandhidham, Kutch stands quashed and set-aside qua the applicant herein only.
Rule is made absolute.
(J.C.UPADHYAYA, J.) (binoy) Top