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TMI Blog2019 (8) TMI 1089X X X X Extracts X X X X X X X X Extracts X X X X ..... director of the accused No.1 company at the time of issuance of cheques and therefore is not held to be responsible for the business of the said company as averred in the complaint. Respondent No.2/Complainant has not brought on record any unimpeachable and incontrovertible evidence to show that the applicant is concerned with the issuance of cheques. Application allowed. - CRIMINAL APPLICATION NO.317 OF 2004 - - - Dated:- 23-8-2019 - S.S. SHINDE J. Mr. Subodh Desai i/by M/s. Ramesh Makhija Co. for the Applicant. Mr. A R Patil, APP for the Respondent/State. JUDGMENT 1. By this Criminal Application the Applicant challenges the order dated 3rd January, 2004 passed by the learned Magistrate, 1st Class (A.C.) Court, Pune at Pune in Criminal Complaint No.538 of 2003 by which order the application filed by the Applicant, who is original accused No.6, for discharge/recalling the process came to be rejected. 2. The facts for filing the present Application in brief can be stated thus :- The Applicant herein is the original accused No.6 in the complaint No.538 of 2003 filed by Respondent No.2/original complainant unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used Nos.3 to 6 are the directors of the said company and accused No.7 is also understood to be in-charge of the affairs of the said company. It is the case of Respondent No.2 that the said company issued two cheques in favour of Respondent No.2 towards payment of quarterly lease amount of the computers and related equipment. Respondent No.2 deposited the said cheques with their bank, however, the said cheques were returned dishonoured with memo insufficient funds . Respondent No.2 therefore sent a notice through advocate to the accused. However, the accused did not make payment. Therefore, Respondent No.2, as stated herein above filed the complaint against the accused. The learned Magistrate, after perusing the material on record, by his order dated 21/07/2003 directed to issue process against inter-alia the Applicant. 4. Thereafter the Applicant filed an application for discharge before the learned Magistrate. It is stated in the said discharge application that the applicant had tendered his resignation much before issuance of the cheques in question and the same is duly documented before the statutory authorities i.e. Registrar of Companies. It is also stated that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the time of trial. It is also observed that the accused no.6 being practicing lawyer and was doing only the work of giving legal advise to the company needs to be proved at the time of trial. It is also observed that the contention of the accused No.6 that he was not responsible or in-charge of the company and he has nothing to do with day to day affairs of the company is to be proved through evidence only. The learned Magistrate, after hearing the parties and considering the material placed on record, came to a conclusion that prima facie case under section 138 of the Negotiable Instruments Act is made out against the accused No.6 and, as indicated above, rejected the application of the applicant for discharge. 7. The learned counsel for the applicant submits that the complainant has failed to make out a prima facie case against the applicant, and therefore the learned Magistrate has erred in issuing the process qua the applicant under Section 138 of the Negotiable Instruments Act. He submits that the applicant had tendered his resignation from the board of directors by his letter dated 01/04/2003 which was accepted by the resolution of the company and accordingly Form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r section 204. This Court in that case also held that the Magistrate issuing the summons can do so only on there being material to issue summons hence summons erroneously issued can be recalled by the Magistrate for which no specific provision is required. The judgment in Adalat Prasad s case (supra) was pronounced on 25/08/2004. therefore on the relevant date i.e. 06/09/2003 when the application was filed by the applicant, the exposition of law in Mathew s case was in force. Therefore, in the facts of the present case, the application filed by the applicant for discharge/recalling of process before the learned Magistrate was maintainable. 11. It is an admitted fact that the cheques issued by Accused No.1 company in favour of Respondent No.2 towards lease contract came to be dishonoured with remarks insufficient funds . It is also an undisputed fact that the notice issued by Respondent No.2 is duly served upon the Applicant. The Applicant replied the said notice by letter dated 10th June 2003. By the said letter, the applicant has informed the complainant that the applicant had ceased to be a director of the said company, and necessary Form No.32 in tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e column of brief particulars of change is, Resigned as Director . It is crystal clear from the perusal of the aforesaid two documents that the applicant has resigned as director of the accused company Echovox (India) Pvt. Ltd with effect from 01/04/2003 which is prior to issuance of the cheques in question on 3rd and 4th May 2003. It is pertinent to mention at this stage that the said cheques were issued by the accused No.1 company towards lease contract between it and Respondent No.2, and the applicant is not the signatory of the said cheques. 13. During the course of arguments, certified true copy of Form No.32 has been produced before me. I have verified the same with the copy of the said Form No.32 which is on record. The photo copy of certified true copy of Form No.32 is taken on record and marked as X for identification. After verification, the original certified copy of Form No.32 is returned to the learned counsel for the applicant. The contents of certified true copy of Form No.32 are the same to the contents appearing in the copy of Form No.32 which is on record. The stamps and signature of Registrar Companies are also appearing on the Certified True copy of Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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