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TMI Blog2018 (8) TMI 1599X X X X Extracts X X X X X X X X Extracts X X X X ..... atable issues. Petition dismissed. - Criminal Writ Petition No. 478 of 2017 With Criminal Application No. 186 of 2017 - - - Dated:- 16-8-2018 - PRAKASH D. NAIK, J. Mr. Akhilesh Dubey a/w. Mr. Samir Singh i/b. M/s. T.D. Joshi Associates, Advocate for the Petitioners in Cri.W.P.No.478 of 2017. Mr. Kapil P. Shah, Advocate for Respondent No.2, in Cri.W.P.No.478 of 2017 and for Respondent no.1 in Cri. Appln. No.186 of 2017. Mr. Ganesh S. Vaidya, Advocate for Respondent Nos.3,4, and 5, in Cri.W.P.No.478 of 2017 and for applicant in Cri. Appln. No.186 of 2017. Mr. A.R. Patil, APP for the Respondent State. JUDGMENT: The petitioners in writ petition no.478 of 2017 and the applicant in criminal application no.186 of 2017, are arrayed as accused in complaint bearing No.2648/SS/2915, for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 ( NI Act , for short). The petitioner in writ petition no.478 of 2017 were impleaded as accused nos.2 and 3, whereas, applicant in Criminal Application No.186 of 2017, was impleaded as accused no.4. 2. The brief facts as alleged in the complaint are as follows: (a) Accused no.1 is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce. (h) In view of the return of the cheque, notice was isseud on 29th March, 2015 to the accused and they were called upon to make payment in respect to the said cheque. Notice was replied by letter dated 10th April, 2015 and 27th April,2015. Inspite of notice, the accused have failed and neglected to make payment. Hence, the complaint was filed on 8th May, 2015. (i) Verification statement of the complainant was recorded and thereafter by order dated 8th October, 2015, learned Metropolitan Magistrate 43rd Court, Borivli, Mumbai issued process against the accused under the provisions of Section 138 read with Section 41 of the NI Act. 3. The petitioners in writ petition no.478 of 2017, challenged the order of process by preferring revision application before the Sessions Court, which was numbered as Criminal Revision Application No.13 of 2016. The applicant in Criminal Application No.186 of 2017, was impleaded as respondent no.4 in the said Revision Application. Accused nos.1, 4 and 5 were arrayed as respondet6 nos.3, 4 and 5. Respondent no.3 in the revision application (accused no.1) and respondent no.5 therein (accused no.5) filed reply to the said revision applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essions Court has rejected Revision Application without any cogent reasons. The Courts below failed to take into consideration several decisions of the Supreme Court relating to vicarious liability enunciated under Section 141 of the NI Act. The petitioners had filed company petition against respondent nos.2 to 5 before National Company Law Tribunal for operation and mismanagement. The Tribunal has passed requisite orders. The petitioners had also filed complaints against the said accused. It is, thus, submitted that there is nothing on record to indicate that the petitioner at any point of time transacted with the complainant and had participated in day to day affairs of the business of accused no.1 company. The petitioners were residents of Bhavnagar Gujarat and hence it was necessary for trial Court to conduct enquiry under Section 202 of Cr.P.C. It is submitted that the petitioner no.1 had lodged FIR dated 25 th January, 2017, against respondent nos.4 and 5 under Sections 420, 406, 120B of IPC. The complaint was also lodged with EOW on 19th February, 2017, against respondent nos.4 and 5. Reliance is also placed on public notice issued by petitioners intimating public at lar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly mentions the involvement of the accused. At the stage of issuance of process, the Court is required to peruse the averments in the complaint, verification statement and the documents on record. 8. It is submitted that the grounds raised by the petitioner / applicant in these proceedings are required to be tested during the trial. This is not the stage to appreciate the contentions of the accused. The learned counsel drew my attention to the averments in the complaint and pointed that it is categorically mentioned that the accused herein have participated in the affairs of the company. It is not necessary to give further details in the complaint. He relied upon the affidavitin- reply which is filed before the Sessions Court as well as in this proceedings dealing with the grounds raised by the accused. Reliance is placed on several documents which are annexed to the reply. 9. Reliance is placed on the decision of the Supreme Court in the case of Standard Chartered Bank Vs. State of Maharashtra and Ors. Cri. Appeal Nos.271-273 of 2016 arising out of SLP (Cri)484 486 of 2016;, Reliance is also placed on the order passed by this Court in the case of Arvind Gupta Vs. Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ). The reply filed in the revision application preferred by petitioners, accused nos.1 and 5 who were respondent nos.3 and 5 therein stated that the present petitioners and the applicant herein were not responsible for day to day conduct of business of accused no.1 company but, they were mere directors, whereas the petitioners by filing reply before the Sessions Court had opposed for grant of any relief to accused no4 who had preferred criminal revision application no.78 of 2018. The accused no.4, however by filling reply in criminal revision application no.13 of 2016, preferred by petitioners, had stated that the petitioners and the said accused are not connected to alleged agreement and have no role to play in transaction. Looking into the nature of allegations made in the complaint, the submissions made by the counsel for the petitioners/applicant, cannot be accepted. The submissions are to be tested at the time of trial and at this stage accused cannot be exonerated from proceeding. 11. Section 141 of the NI Act, can be quoted for reference, which reads as follows: 141 Offences by companies. - (1) If the person committing an offence under section 138 is a company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y filed by respective parties in the said application and this petition had created debatable issues which are required to be tested during trial. The other submissions advanced by the advocate for the petitioner that several complaints were filed against co-accused, proceedings were initiated before Company Law Board etc., cannot be accepted at this stage when prima facie case is made out against the accused for issuing process under Section 138 read with 141 of NI Act. 13. As far as the submission relating to inquiry contemplated under Section 202 of Cr.P.C.,i have already taken a view based on earlier decision of this Court that inquiry as contemplated under Section 202 of Cr.P.C. is not mandatory in respect to the proceedings under Section 138 of NI Act. There was sufficient material before trial Court to issue process. In the circumstances, the said submission also required to be rejected. 14. It is pertinent to note that in the reply notice dated 29th March, 2015,the petitioners had stated that, on account of financial investor into the company they have become the director of the company. In the affidavit-in-reply, filed byh respondent no.2 in W.P.No.478 of 2017, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Devidasani (Supra), it was observed that taking complaint in entirety, no sufficient role is attributed to accused. The factual matrix of the said decision indicate that the appellant had resigned from company which was known to complainant. Except making bald statement and throwing burden on appellant/accused to prove documents, complainant had not pleaded that public document of Form 32 is forged and fabricated. In the case of Standard Chartered Bank (Supra), after analysing various decisions relating to Section 141 of NI Act, it was observed that the averments clearly meet the requisite test. 16. Taking into consideration the totality of circumstances, including admission in reply to notice, averments in respective reply filed in revision applications filed before Sessions Court as well as averments in present proceedings and affidavit-in-reply in these matters, no case is made out to exercise inherent powers to quash proceedings which are based on debatable issues. 17. Hence, I pass the following order: :: O R D E R :: (i) Criminal Writ Petition No.478 of 2017 and Criminal Application No.186 of 2017, are dismissed; (ii) It is clarified that the observat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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