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TMI Blog2017 (3) TMI 1845X X X X Extracts X X X X X X X X Extracts X X X X ..... Consultancy Pvt. Ltd. is a duly incorporated, established and registered as a Company under the provisions of the Companies Act, 1956. It is duly managed, operated and actively controlled by the accused Nos. 2, 3 and 4 and all of them are taking parts in the day-to-day affairs of the business of the Company. They all are individually and jointly responsible/liable for the said business of the Company. That, the said accused Nos. 2, 3 and 4 had, for and on behalf of the said Company, unanimously had taken a decision and contacted the complainant Company for requirement of INTER CORPORATE DEPOSIT (ICD) of Rs. 1,00,00,000/-, vide its Inter Corporate Deposit letter dated 19.10.2012 and sent it to the complainant Company under the signature of accused No. 2, followed by letter of documents for ICD dated 19.10.2012. That, on receipt of said two letters, and in connection with the said ICD, the accused persons had purchased a Non Judicial Stamp Paper of Rs. 100/- and on a stamp paper, Memorandum of Understanding was executed under the signature of the accused No. 2; for and on behalf of accused No. 1 Company, in pursuance to a duly taken decision of the accused Nos. 3 and 4 and on other s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Limited, Ahmedabad for encashment/clearing, but due to "insufficient funds" in the said bank account, the said two cheques were not honoured and accordingly returned unpaid. That, complainant Company was duly informed/intimated by the said bank ie., AXIS Bank Ltd. as to dishonour of the said two cheques and therefore, the complainant served a notice to the accused persons and all the accused were, therefore, called upon, jointly as well as severally, by the said statutory notice of demand to make payments of the said two dishonoured cheques within 15 days from the date of receipt of the notice of demand, as provided under Section 138 of the Negotiable Instruments Act, 1881 and thereafter, a complainant, being Criminal Case No. 1244 of 2013 came to be filed before the court of Metropolitan Magistrate, Ahmedabad for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 against the accused persons. 4. Feeling aggrieved by the complaint filed by the respondent No. 2, being Criminal Case No. 1244 of 2013 before the Metropolitan Magistrate, Ahmedabad, the applicant has preferred this application for quashment of the impugned complaint and while admitting this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argued by learned senior counsel Mr. Yogesh Lakhani appearing for the applicant that applicant is not a signatory to the cheque nor has he committed any kind of offence as alleged in the complaint. That, facts of the case reveals mala fide intention on the part of the respondent No. 2, and therefore, continuous of the complaint is nothing, but an abuse of the process of law. In support of his arguments, learned senior counsel for the applicant has relied upon decisions of Hon'ble Supreme Court in cases of Saroj Kumar Poddar v. State (NCT of Delhi) & Anr., reported in (2007) 3 SCC 693; Harshenda Kumar D. v. Rebatilata Koley & Ors. reported in (2011)3 SCC 351, Pooja Ravinder Devidasani v. State of Maharashtra & Ors., reported in (2014) 16 SCC 1 and N.K. Wahi v. Shekhar Singh & Ors., reported in 2007(9) Supreme Court Cases 481. 7. Learned senior counsel appearing on behalf of the applicant has drawn attention to this Court to the affidavit made by Shri Rameshkumar Abhimanyu Singhal, one of the Director of the respondent No. 3-Company to urge that he has supported the contentions of the applicant saying that the applicant had tendered his resignation with the respondent No. 3 on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 16198/2011 and the judgment of the Apex Court in case of Malwa Cotton and Spinning Mills Limited v. Virsa Singh Sidhu Ors. reported in AIR 2008 SC 3273. Ultimately, it was requested by him to dismiss the present petition. 9. Learned advocate Mr. Pratik B. Barot appearing for the respondents No. 3 to 4 has adopted the arguments advanced by learned senior counsel Mr. Yogesh Lakhani appearing for the applicant. 10. Learned APP Mr. KP Raval appearing for the respondent No. 1 State has supported the arguments advanced by learned advocate Mr. Hardik A. Dave appearing for and on behalf of the respondent No. 2. He submitted that it is a pure question of fact involved in the petition as well as in the complaint. Therefore, at this stage, no powers could be exercised by the High Court under Section 482 CrPC. That, this dispute can only be decided in the trial Court on leading of necessary evidence by both the parties. Ultimately, it was requested by learned APP to dismiss the petition. 11. Having heard learned advocates for the parties, it is not in dispute that applicant joined the Company ie., respondent No. 3 as Additional Director on 22nd July, 2009 and officiating in the capacity o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... panies. He added that Form No. 32 would be relevant for deciding the liability of the applicant and until the same is decided by the trial Court, the complaint cannot be quashed. None mentioning of the date of relieving the applicant from the liability of the post of Directorship of the respondent No. 3 with effect from 31st March, 2012 would be a factual aspect, which needs to be adjudged as in one Form date of submitting the same is mentioned, and whereas in another it is not. Shri Rakeshkumar A. Singhal has filed his affidavit supporting the contents of the petition saying that the resignation was tendered by the applicant on 31st December, 2012 via email and hand delivered letter and in a Board meeting held on 15.01.2013, his resignation was accepted. In the complaint, it is specific case of the respondent No. 2 that the accused Company [ie., the respondent No. 3] is duly managed/operated and actively controlled by the accused Nos. 2, 3 and 4. It is further averred that the accused Company is doing its business in Maritime infrastructure consultancy etc,. through its Directors viz., the accused Nos. 2, 3 and 4. As per the averments made in the complaint, the applicant is a Dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany was accepted and notified to the Registrar of Companies in a prescribed form (ie., Form 32). Here, as discussed above, there is a difference in the form produced by either side showing date in one form as 31st December, 2012 and no date of relieving the applicant from the responsibility as a Director of the accused Company, in another. This would be a pure question of fact, which requires adjudication upon leading evidence, because date of relieving the applicant from Company is material to hold be liable. 14.3 In case of Pooja Ravinder Devidasani v. State of Maharashtra & Anr., reported in (2014) 16 SCC 1, it is held by the Apex Court that for making a Director liable, there must be specific averments against him showing as to how and in what manner he/she was responsible for the conduct of business of the Company. It was further held that mere verbatim reproduction of words of section without a clear statement of fact duly supported by proper evidence would not be enough to make accused vicariously liable for the Company and conduct of its business was in charge of and was responsible to the Company. The question of post dated cheques towards security for ICD received by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of unimpeachable character should not be taken into consideration at any cost for the purpose of finding out as to whether continuance of the criminal proceedings would amount to an abuse of the process of Court or that the complaint petition is filed for causing mere harassment to the accused. While we are not oblivious of the fact that although a large number of disputes should ordinarily be determined only by the civil courts, but criminal cases are filed only for achieving the ultimate goal namely to force the accused to pay the amount due to the complainant immediately. The Courts on the one hand should not encourage such a practice; but, on the other, cannot also travel beyond its jurisdiction to interfere with the proceeding which is otherwise genuine. The Courts cannot also lose sight of the fact that in certain matters, both civil proceedings and criminal proceedings would be maintainable." 14.7 In case Rallis India Limited v. Poduru Vidya Bhushan, reported in 2011(13) SCC Page No. 88, the Hon'ble Supreme Court has expressed its view on this point, as under: "12. At the threshold, the High Court should not have interfered with the cognizance of the complaints having ..... X X X X Extracts X X X X X X X X Extracts X X X X
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