9911796707
TMI Blog2019 (1) TMI 1888X X X X Extracts X X X X X X X X Extracts X X X X ..... t money in his Company viz. Vyogiswami Financial Consultants Limited (for short 'the Company') to get good returns. Accordingly, the complainant initially invested Rs. 6,00,000/-, for which the applicants have issued a fixed deposit receipt with a promise to return 18% thereon per year. Again, the complainant invested another Rs. 6,00,000/- in cash. As soon as the maturity period came, the complainant approached the applicants for her return when she was informed by the applicants that it would not be possible to give the interest but the principal amount will be returned and for that three cheques were issued in favour of the complainant - (i) cheque No. 000196 dated 13.02.2016 for Rs. 6,00,000/- of HDFC Bank, Vadodara; (ii) cheque No. 506664 dated 13.02.2016 for Rs. 4,00,000/- of Allahabad Bank, Vadodara; AND (iii) cheque No. 506666 dated 13.02.2016 for Rs. 2,00,000/- of Allahabad Bank, Vadodara, all three cheques bear the signatures of both the applicants. Thereafter, the complainant presented the said cheques in her bank, out of which only one cheque of Rs. 2,00,000/- was cleared and others were dishonoured and returned with the endorsement "insufficient funds". ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... untable for the action done without any good faith. 4.1 Learned advocate for respondent No. 2 further submitted that cheque bearing No. 506664 issued in favour of respondent No. 2-complainant is signed by the applicants in their personal capacity. It was submitted that the applicants have maliciously shown bank A/c. No. 50067399742 being of the Allahabad Bank, Vadodara in the Share Application Form in the name of the Company, whereas the disputed cheque shows that the same is the joint bank account in the names of the applicants. 4.2 Learned advocate for respondent No. 2 further submitted that the applicants are the Directors in default of the Company. It was submitted that the Company has ceased to operate since 2011 and has not filed the income tax returns since 2011 and hence, the Company is "struck off" as per the provisions of the Companies Act, 1956 for non-filing of the annual returns for three consecutive years and the Directors of the Company are disqualified as per section 274(1)(g) of the Companies Act. It was submitted that the cheques issued by the applicants in their personal capacity and in the capacity of the Directors of the Company and both of them have signed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of disqualification of the Directors of the Company. It was submitted that this statement of respondent No. 2 is absolutely false and incorrect. It was submitted that at the relevant point of time when the cheques were issued, the applicants were not disqualified as the Directors. It was submitted that in fact the applicants are appointed as the Directors of the Company in 2011. It was submitted that the complainant is misreading and misinterpreting the documents annexed by herself with her affidavit-in-reply. It was submitted that the relevant documents annexed to the writ application shows that the Company was active since 2018 and the status is produced by respondent No. 2 herself on 09.01.2018. It was further submitted that when the cheques got dishonoured, there was no disqualification of the Directors and the Company was active. It was submitted that from the perusal of the documents it is revealed that the contention of the disqualification of the Directors of the Company is absolutely false and contrary to the record. 6. Learned Advocate Mr. Syed for the respondent no. 2, in support of his contention has placed reliance on the decision of the Apex Court in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Learned Assistant Solicitor General of India Mr. Devang Vyas, on instructions of the RoC, has submitted that the Company can be said to be in existence till August, 2018 when the final notice under section 248(5) of the Companies Act was issued. Thus, the statement of the investigating officer recorded by this court in the order dated 17.12.2018 stands vindicated by the report of the RoC that the Company was in existence till August, 2018. 12. The applicants have issued the cheques as mentioned in the statement below: Sr. No. Bank Name Ch. No. Date Amount (lacs) 1. HDFC Bank, Vadodara. 000196 13.02.2016 6,00,000 2. Allahabad Bank, Vadodara, 506664 13.02.2016 4,00,000 3. Allahabad Bank, Vadodara, 506666 13.02.2016 2,00,000 TOTAL 12,00,000- 13. The upshot of the aforesaid observations is that, when the cheques Nos. 000196 and 506664 were issued on 13.02.2016 and at the time of filing the impugned complaint i.e. on 20.05.2016 before the court of Chief Judicial Magistrate, Vadodara, the Company was very much in existence. The Apex Court in the case of Aneeta Hada (supra) while examining the provisions of section 138 read with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bank account is in the name of the Company. Thus, once it is established that the cheque, which is dishonoured, is issued from the bank account of the Company, then, as per the law enunciated by the Apex Court in the case of Aneeta Hada (supra), the impugned complaint is required to be quashed and set aside since it was imperative to arraign the Company as an accused to the impugned complaint for maintaining the prosecution under section 141 of the N.I. Act. 17. The decision of this court relied upon by the learned advocate appearing on behalf of respondent No. 2 in the case of Dipendra G. Choksi & Anr. Vs. Dipal Chimanlal Patel, 1997(2) G.L.R. 1191 cannot rescue the respondent No. 2 since the same does not deal with the issue involved in the present writ application. The reliance placed upon the decision of the Apex Court in the case of Mainuddin Abdul Sattar Shaikh (supra) also will not help the respondent No. 2 since in the said case before the Apex Court the cheque was drawn by the Managing Director of the Company in his personal capacity. 18. In the present case, as noted hereinabove, all the cheques are issued in the name of the Company, except Cheque No. 506664 of Rs. 4,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
