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TMI Blog2019 (11) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... onsent of the learned counsel for the parties, Criminal Application No.21 of 2019 is treated as a lead matter and the facts in the said Criminal Application No. 21 of 2019 would be referred to for the sake of convenience. The parties would be referred to as per their status in the Trial Court. 4. Rule, with the consent of the learned counsel for the parties made returnable and heard forthwith. 5. The facts giving rise to filing of the Criminal Application, in brief, can be stated thus :- It is the case of the Applicant that the Applicant is a former independent director of M/s. D S Kulkarni Developers Limited i.e. the original Accused No.1 Company. The Applicant joined D S K Global Education & Research Pvt. Ltd., a subsidiary of the company as an independent director on 24/10/2008 and resigned therefrom on 23/03/2013. He was associated with the company as an independent director from 30/09/2014 till 08/05/2017. It is the case of the Applicant that he resigned from the company as an independent director by tendering a written resignation to the Chairman on 03/05/2017. The resignation of the Applicant was notified to the Registrar of Companies and his cessation of services has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey were and are in charge of and responsible for the conduct of the business and affairs of the company at the time commission of the offence. It is also alleged that Accused Nos. 2 to 8 play an active role in the functioning affairs and business activities of the company. It is also alleged that Accused Nos. 2 to 8 have dealt with Respondent No.1 complainant at the time of the transaction with the complainant. 8. Upon perusal of the complainant, verification and additional affidavit of the complainant and documents, the learned Metropolitan Magistrate has came to a conclusion that the mandatory provisions of Section 138 of the Negotiable Instruments Act have been complied with by the complainant, and prima facie case is made out against the accused. The learned Metropolitan Magistrate therefore passed order directing issuance of process against the accused for the offence punishable under Section 138 of the Negotiable Instruments Act. It is the said order of the learned Metropolitan Magistrate which is taken exception to by way of the above Criminal Applications. 9. Heard the learned counsel for the parties. 10. The learned counsel for the Applicant submits that the applicant w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any. It is also submitted that the material produced by the Applicant is of incontrovertible, unimpeachable character and therefore has to be considered to arrive at a conclusion that the applicant was only appointed as an independent director with an advisory role in the company. In support of the aforesaid contentions, the learned counsel for the Applicant sought to rely upon the judgment of this Court in the case of Alok sharma v. State of Maharashtra [Writ Petition No. 834 of 2017, dated 10-2-2015] He therefore submitted that the proceedings initiated by the complainant against the present Applicant are malafide and, the assertions in the complaint are nothing but mere reproduction of the provisions of Section 141 of the Negotiable Instruments Act. He submits that the Criminal Applications deserve consideration. 11. The learned counsel appearing for Respondent No.1 original complainant submits that on the request being made, the complainant advanced a friendly loan to accused No.1 company. It is submitted that when the cheque, issued by accused No.1 company in favour of Respondent No.1 complainant, was presented in the bank, the same was dishonoured with reasons "insufficient ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion making i.e. finance etc and, they were and are in charge of and responsible for the conduct of the business and affairs of the company at the time commission of the offence. It is also alleged that Accused Nos. 2 to 8 play an active role in the functioning affairs and business activities of the company. The complainant has specifically alleged that Accused Nos. 2 to 8 have dealt with Respondent No.1 complainant at the time of the transaction with the complainant. It is required to be noted that the present Applicant is original accused No.6 in the complaint. 16. In view of the aforesaid letter of the Applicant testifying his consent to act as a Director and considering the particulars mentioned in Form No.DIR-12 showing the designation of the Applicant as Director of accused No.1 as also in the light of the allegations made by the complainant in the complaint against the Applicant and other accused, this Court is of the opinion that, whether the appointment of the Applicant was an independent director or the director of the company and, whether he was playing active role in the day to day affairs of the company at the relevant time or not, would be a matter for appreciation of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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