1. The present Criminal Misc.Application u/s.482 of the Code of Criminal Procedure has been preferred by the applicant herein – original accused No.5 to quash and set aside the impugned complaint being Criminal Case No.2603 of 2008 (Old No.2700 of 2000) pending in the Court of learned Metropolitan Magistrate, Court No.2, Ahmedabad filed by respondent No.1 herein – original complainant against the applicant herein and others for the offence punishable u/s.138 of the Negotiable Instruments Act,1881.
2. Respondent No.1 herein – original complainant has filed the impugned complaint being Criminal Case No.2700 of 2000, which was subsequently renumbered as Criminal Case No.2603 of 2008 against the applicant herein - original accused No.5 and others for the offence punishable u/s.138 of the Negotiable Instruments Act for dishonour of cheque Nos.864864 dated 28/09/1999; 864865 dated 28/10/1999; 864866 dated 28/11/1999; 864867 dated 28/12/1999; 864868 dated 28/01/2000 and 864869 dated 28/02/2000 each for Rs.3,67,500/- and 864870 dated 28/02/2000 for Rs.1,50,000/-. In the said complaint, learned Magistrate has directed to issue summons against the applicant herein and others for the offence punishable u/s.138 of the Negotiable Instruments Act. Being aggrieved by and dissatisfied with the same, the applicant here – original accused No.5 has preferred the present application u/s.482 of the Code of Criminal Procedure.
3. Learned advocate appearing on behalf of the applicant herein – original accused No.5 has vehemently submitted that as such applicant herein – original accused No.5 has not committed any offence as alleged. It is submitted that admittedly cheques in question were issued in the year 1999-2000 and the same were presented before the Bank during the said period, which have been dishonoured. It is further submitted that the applicant herein – original accused No.5 had already resigned as Director of the original accused No.1 - company on 27/05/1995. Therefore, it is submitted that long before the cheques were issued and presented before the bank, the applicant herein had resigned from the Directorship of the Company. To establish this, the applicant produced Form No.32 of Registrar of Companies showing that the applicant had resigned with effect from 27/05/1995. It is further submitted that when the cheques were issued and were presented before the Bank, the applicant was not the Director of the original accused No.1-company and, therefore, for dishonour of cheques, which were admittedly issued subsequent to the applicant's resignation as Director, the applicant cannot be held liable for the offence punishable u/s.138 of the Negotiable Instruments Act. Therefore, it is requested to quash and set aside the impugned complaint qua the applicant herein – original accused No.5.
4. The present application is opposed by Mr.Sanjay Gupta, learned advocate appearing on behalf of respondent No.1 herein - original complainant. It is submitted that as such as to whether the applicant has resigned as Director of the Company on 27/05/1995 or not is a question, which is required to be considered at the time of trial. Therefore, it is requested not to quash and set aside the impugned complaint at this stage. He has relied upon the decision of the Hon'ble Supreme Court in the case of Rallis India Limited V/s. Poduru Vidya Bhusan and others reported in 2011(4) Scale 614. It is further submitted by Mr.Sanjay Gupta, learned advocate appearing on behalf of the original complainant that even otherwise on the ground of delay, the impugned complaint is not required to be quashed and set aside in as much as the learned Magistrate has issued summons against the applicant herein on 11/4/2000 and the present application has been preferred by the applicant here in the year 2010 after a period of 10 years. By making above submissions and relying upon above decision, it is requested to dismiss the present application.
5. Mr.L.B.Dabhi, learned Additional Public Prosecutor appearing on behalf of respondent No.2 -State has requested to pass an appropriate order in the facts and circumstances of the case.
6. Heard the learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that the impugned complaint has been field by respondent No.1 herein – original complainant against the applicant herein – original accused No.5 and others for the offence punishable u/s.138 of the Negotiable Instruments Act for dishounour of cheques, which were issued and presented in the year 1999-2000. It is the case on behalf of the applicant that long before the cheques were issued and were presented before the Bank, the applicant herein had resigned from the Directorship of the original accused No.1 - company. To establish this, the applicant produced Form No.32 of Registrar of Companies showing that the applicant had resigned with effect from 27/05/1995. Even intimation of resignation was sent to the Registrar of the Companies on 15/06/1995 i.e. much before issuance of the cheques in question and much before the same were deposited with the bank. Under the circumstances, at the relevant time when the cheques were issued and presented in the bank, the applicant was not the Director of the original accused No.1-Company on whose behalf the cheques have been issued, the applicant herein cannot be held liable for the offence punishable u/s.138 of the Negotiable Instruments Act for dishonour of the said cheques. Under the circumstances, to continue the criminal proceedings against the applicant herein would be unnecessary harassment to the the applicant herein and abuse of process of law and Court.
7. So far as contention on behalf of the original complainant that there is a delay of 10 years in preferring the present application is concerned, it is required to be noted that it is the case on behalf of the applicant that he has not been served with the summons of the Court, which has been issued by the learned Magistrate in the year 2000 and he came to know about the impugned complaint from the company. Be that may as it is. Even when it has been specifically found that the applicant cannot be held liable for dishonour of cheques, which have been issued much after his resignation and it cannot be said that the applicant has committed an offence punishable u/s.138 of the Negotiable Instruments Act. Under the circumstances, it appears to the Court that this is a fit case to exercise the powers u/s.482 of the Code of Criminal Procedure and to quash and set aside the impugned complaint qua the applicant herein – original accused No.5.
8. In view of the above, the application succeeds. The impugned complaint being Criminal Case No.2603 of 2008 (Old No.2700 of 2000) pending in the Court of learned Metropolitan Magistrate, Court No.2, Ahmedabad filed by respondent No.1 herein – original complainant for the offence punishable u/s.138 of the Negotiable Instruments Act is hereby quashed and set aside so far as the applicant herein – original accused No.5 is concerned. However, the same shall be without prejudice to the rights and contentions of the original complainant as well as prosecution against the other accused persons and they can be tried in accordance with law and on merits and without in any way being influenced by the present order. In the facts and circumstances of the case, learned Trial Court is hereby directed to conclude the trial against the other accused persons at the earliest. Rule is made absolute to the aforesaid extent.
[M.R.SHAH,J] *dipti