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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 ..... as 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 the contentions of the parties by the trial Court. It would depend upon appreciation of evidence, and the documents filed in the Trial Court. The question as to whether the present Applicant was an independent director of accused No.1 company or he was a director of accused No.1 company at the relevant time has to be decided only during trial after giving opportunity to the parties to lead evidence in that regard. Application dismissed. - Criminal Application Nos. 21, 22, 116 And 225 of 2019 - - - Dated:- 6-8-2019 - MR S. S. Shinde, J. For The Applicant : Mr Rohan Rajaram Sonawane For The Respondent : Mr Yogesh Israni and A.R. Patil, APP JUDGMENT 1. The above group of four Criminal Applications has been filed by the Applicant - original accused, challenging the orders passed by the learned Metropolitan Magistrate, 28th Court, Esplanade, Mumbai. By the said orders the learned Magistrate directe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offence under Section 138 of the Negotiable Instruments Act. It is the case of Respondent No.1 - complainant in the complaint that the complainant and accused No.1 company had friendly relationship. In the year 2016, accused No.1 approached the complainant for a friendly loan of ₹ 56,00,000/-. Pursuant to the request the complainant agreed to finance accused No.1 with a loan on interest. In discharge of its liability accused No.1 issued 7 cheques for ₹ 8,00,000/- each in favour of the complainant drawn on Bank of Maharashtra, Bajirao Road, Pune. The said cheque were signed by original accused No.4 Hemanti D Kulkarni as authorized signatory of accused No.1 company. Out of the said 7 cheques, when one cheque bearing no.455494 dated 24/11/2016 for ₹ 8,00,000/- was presented for encashment, the said cheque returned dishonoured along with memo with reasons funds insufficient . The complainant sent a legal notice dated 15/12/2016 to accused No.1 company and all other accused. Accused No.1 company and other accused neither responded to the said statutory notice nor paid the demanded amounts. Consequently the complainant approached the learned Metropolitan Magistrate, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... independent director was not a party to any agreements or documents in the present transaction, and the applicant was completely unaware of the loan transaction between accused No.1 company and Respondent No.1 complainant as well as issuance of the said cheque by accused No.1 company to Respondent No.1 complainant. It is also submitted that the Applicant was neither the signatory of the said cheques nor the Managing Director, or Chairman or Executive Director or Whole time Director or CEO, and he had no control over the administration and/or day to day affairs of accused No.1 company. The learned counsel for the Applicant submits that the applicant was playing an advisory role in the company. It is submitted that the applicant for personal reasons resigned from accused No.1 company with effect from 08/05/2017 and handed over the charge to the concerned persons. It is submitted that from the documents obtained from the records of Registrar of Companies, Pune reveal that the applicant's appointment with accused No.1 company was an independent director/Non-executive Director, and he has no role in the administration and functioning of the accused No.1 company at the relevant time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted an offence under Section 138 of the Negotiable Instruments Act. He therefore submits that Applications deserve no consideration. 12. Heard the learned counsel for the Applicant and the learned counsel for Respondent No.1. With their able assistance perused the pleadings and grounds mentioned in the Applications, other documents and material placed on record and the reasons assigned by the learned Magistrate in issuing the process against the accused. 13. The learned counsel appearing for Respondent No.1 complainant invites this Court's attention to the letter written by the present Applicant to the Board of Directors of Accused No.1 Company. The said letter is at page 56 of the Criminal Application No.21 of 2019. The Applicant has testified his consent to act as Director of D.S. Kulkarni Developers Limited, pursuant to Section 264(1)/266(1)(a) of the Companies Act, 1956 and certify that he has not been disqualified to act as a Director under Sections 267 and/or 274 of the Companies Act, 1956. 14. The learned counsel for Respondent No.1 complainant also invites this Court's attention to the Form No.DIR-12, which is at Page 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent has filed verification and additional affidavit of the complainant and documents before the Trial Court. The Trial Court has came to a conclusion that prima facie case is made out against the accused, and therefore issued process against the accused for the offence punishable under Section 138 of the Negotiable Instruments Act. The question as to whether the present Applicant was an independent director of accused No.1 company or he was a director of accused No.1 company at the relevant time has to be decided only during trial after giving opportunity to the parties to lead evidence in that regard. 18. In the light of aforesaid discussion and considering the allegations made in the complaint, the material placed on record, it will not be possible to interfere with the order of issuance of process. No case for interdiction at the hands of this Court in its jurisdiction under Section 482 of the Criminal Procedure Code is made out. All the Criminal Applications stand rejected. Rule stands discharged. All contentions raised on merits are kept open for being agitated before the Trial Court. Needless to state that the observations made herein above are prima facie in n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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