[1.0] Present Special Criminal Application under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) has been preferred by the petitioner – original accused No.4 to quash and set aside the impugned complaint being Criminal Case No.1207/2008 pending in the Court of learned Metropolitan Magistrate, Court No.21, Ahmedabad. [2.0] Respondent No.2 herein – original complainant ICICI Bank Limited has filed the impugned complaint being Criminal Case No.1207/2008 pending in the Court of learned Metropolitan Magistrate, Ahmedabad against the petitioner – original accused No.4 for the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “NI Act”) for dishonour of cheques bearing Nos.589946 and 589947 dated 31.12.2007 issued by original accused No.1 Company, signed by original accused No.2 in the capacity as Director and authorized signatory of original accused No.1 Company. That in the said complaint, the learned Magistrate has directed to issue summons against the petitioner and others for the offences punishable under Section 138 of the NI Act. Hence, being aggrieved and dissatisfied with the impugned complaint as well as the order passed by the learned Magistrate directing to issue summons for the offence under Section 138 of the NI Act, the petitioner – original accused No.4 has preferred the present Special Criminal Application under Article 226/227 of the Constitution of India read with Section 482 of the CrPC.
[3.0] Shri Tarak Damani, learned advocate appearing on behalf of original accused No.4 has vehemently submitted that as such petitioner has not committed any offence as alleged for the offence under Section 138 of the NI Act for dishonour of cheques dated 31.12.2007 issued by original accused No.1 Company, signed by original accused No.2 in as much as at the relevant time when the said cheques were alleged to have been issued by original accused No.1, the petitioner was not the Director of the original accused No.1 Company. It is submitted that petitioner had already resigned as Director of the original accused No.1 Company on 10.04.2003 and even the same was intimated to the Registrar of Companies in Form No.32 on 10.04.2003. It is further submitted that even in the subsequent balance sheet/annual report filed by original accused No.1 Company, the petitioner is not shown as a Director of the original accused No.1 Company. It is submitted that admittedly the cheques in question have been issued by original accused No.1 Company on 31.12.2007. It is submitted that therefore, as at the relevant time when the original accused No.1 Company issued the said cheques which are dishonoured, the petitioner – original accused No.4 was not the Director of the Company, he can not be held vicariously liable under Section 141 of the NI Act for dishonour of cheques issued by original accused No.1, which is admittedly issued after the petitioner has resigned as a Director. Therefore, it is submitted that to continue criminal proceedings against original accused No.4 would unnecessary harassment to him and abuse of process of law and the Court. Therefore, it is requested to quash and set aside the impugned complaint/criminal proceedings qua the petitioner in exercise of powers under Article 226/227 of the Constitution of India read with Section 482 of the CrPC.
[4.0] Shri Dharmesh Shah, learned advocate has appeared on behalf of the original complainant. An affidavit in reply is filed on behalf of the original complainant submitting that the certified copy of Form No.32 is not produced and therefore, the case on behalf of the petitioner that he has resigned as a Director of the original accused No.1 Company on 10.04.2003 is a question which is required to be considered at the time of trial. However, additional affidavit is filed by the petitioner producing the zerox copy of the certified copy of Form No.32 issued by the office of Registrar of Companies as well as the zerox copy of the certified copy of the Annual Reports for the subsequent period i.e. after 200304. In view of the above, it is requested to pass appropriate order. However, has requested to make suitable observation that the trial against other accused may be proceeded further by the learned Magistrate in accordance with law and on merits and without in anyway being influenced by the present order.
[4.1] Shri Dabhi, learned Additional Public Prosecutor has requested to pass appropriate order in the facts and circumstances of the case.
[5.0] Heard the learned advocates appearing on behalf of respective parties at length. At the outset, it is required to be noted that impugned complaint is filed by respondent No.2 – original complainant against the petitioner and others for the offence under Section 138 read with Section 141 of the NI Act for dishonour of cheques issued by the original accused No.1 Company, signed by original accused No.2 as a Director and authorized signatory which have been issued by the original accused No.1 on 31.12.2007. It is the case on behalf of the petitioner that much prior thereto the petitioner had already resigned as Director of original accused No.1 Company on 10.04.2003 who has issued the cheques. In support of his case, the petitioner has produced Form No.32 send to Registrar of Companies as well as the zerox copy of the certified copy of the Annual Report for the subsequent year of original accused No.1 Company. Considering Form No.32, which was send to Registrar of Companies as well as the zerox copy of the certified copy of the Annual Report of original accused No.1 Company for the period subsequent to 200304, it appears that the petitioner had already resigned as a Director of the original accused No.1 Company on 10.04.2003 with an intimation to Registrar of Companies in Form No.32 immediately. Even in the subsequent Annual Reports, name of the petitioner is not shown as a Director. Under the circumstances, when the petitioner was not the Director of the original accused No.1 Company at the time when the original accused No.1 Company issued the cheques which are dishonoured, the petitioner cannot be held vicariously liable for the offence alleged to have been committed by original accused No.1 Company for the offence under Section 138 of the NI Act. Under the circumstances, to continue the criminal proceedings against the petitioner – original accused No.4 shall be abuse of process of law and the Court and therefore, this is a fit case to exercise powers under Article 226/227 of the Constitution of India read with Section 482 of the CrPC and to quash and set aside the impugned proceedings.
[6.0] In view of the above and for the reasons stated above, present Special Criminal Application succeeds. Impugned complaint being Criminal Case No.1207/2008 pending in the Court of learned Metropolitan Magistrate, Court No.21, Ahmedabad is hereby quashed and set aside so far as present petitioner – original accused No.4 is concerned. However, the same shall be without prejudice to the rights and contentions of the original complainant as well as the prosecution against rest of the accused persons and the trial against them shall be proceeded further by the learned Magistrate in accordance with law and on merits and without in anyway being influenced by the present order. Rule is made absolute to the aforesaid extent.
(M.R. Shah, J.) *menon