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TMI Blog2023 (2) TMI 1189X X X X Extracts X X X X X X X X Extracts X X X X ..... scharge of debt and liability. The petitioner had sufficiently shown that Nitin Dara has authority to present the revision and the writ petition. From the judgment of the learned Additional Sessions Judge also it is seen that though clearly a case was made out by the petitioner that no procedure under Section 202 of the Cr. P. C. was followed still the learned Additional Sessions Court failed to appreciate this aspect on the count of locus of Nitin Dara also the court has failed to appreciate that Nitin Dara had the locus to file revision. It was necessary to hold that the learned Magistrate had issued the order of process without observing the mandate under Section 202. This court holds that both the courts have thus committed an error. Petition allowed. - Kishore C. Sant, J. For the Appellant : Mr. Rahul Totala, Advocate a/w Mr. Rajat Malu For the Respondent: Mr. Irfan D. Maniyar, ORDER 1. This criminal writ petition is by a company shown as accused in a complaint filed by the respondent for an offence punishable under Section 138 of the Negotiable Instruments Act. The learned JMFC on the basis of complaint issued process against the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce station that FIR be registered under Sections 406 and 420 of the IPC. In the meantime in the complaint that was lodged bearing SCC No. 4580/2021 Learned JMFC, Aurangabad vide order dated 26-06-2021 issued process against the accused persons. Summons was served on director Rita Panchamiya. She appeared and furnished a bail. 3. The petitioner challenged the order of issuance of process by filing Criminal Revision Application No. 151/2021 through Nitin Dara on the grounds as stated in the earlier paragraph. The learned Additional Sessions Court framed three points :-1] Whether the order passed by leaned JMFC Court 26th June 2021 and 26th August 2021 vide Exh.1 and Exh.6 are incorrect and improper? 2] Whether the applicant has locus to file a revision? 3] Whether the order warrants interference and is liable to be set aside?. 4. The learned Additional Sessions Judge while answering the question about following of procedure under Section 202, observed that the learned trial court has gone through the contents of the complaint, documents filed on record and examination on oath and after making due inquiry the learned trial court prima facie formed opinion that it had territori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no question of suing the petitioner company by showing her as a director and for that he produced on record form No.2 No. DIR-12 pursuant to section 7(1)(c) 168 and 170(2) of the Companies Act, 2013 and rules thereunder saying that she resigned from the Directorship on 15-06-2021. The learned advocate for the petitioner further relied upon the following judgments: 1. (2021) SCC Online SC 806 in the case of Ravindranath Bajpe VS Manglore Special Economic Zone Ltd. and others, 2. 2001 SCC Online Mad 822 in the case of Angu Parameshwari Textiles (P) Ltd. and Ors Vs Shri Rajam and Co. 3. 2022 SCC Online SC 1598 in the case of Pawan Kumar Goel Vs State of UP and another. 7. The learned Advocate Mr. Maniyar, for the respondent original complainant, vehemently opposed the petition. He argued that it is Rita Panchamiya who has signed cheque and documents for the purpose of loan from the respondent society. He submits that demand notice was issued on 28-04-2021. Cheque was presented on 30-03-2021. Resolution was in the name of present representative is dated 13-08-2021, therefore, company is rightly sued through the director. So far as the variance in the amount of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. 10. In the case of Suo Motu Writ Petition (Cri) No. 2 of 2020 regarding expeditious trial of cases under Section 138 of the N. I. Act. it is held that procedure under section 202 is mandatory and without making inquiry under Section 202 where the accused resides beyond the said jurisdiction of the court, the order issuing process is illegal by issuing the various guidelines providing the manner in which inquiry is to be conducted. Thus, this court finds that the petitioner has rightly placed reliance upon this judgment. 11. Next judgment is again on the point of 202 in the case of Ravindranath Bajpe (supra) wherein the Hon ble Apex Court has held that inquiry under Section 202 is must. In the case of Angu Parameshwari Textiles (P) Ltd (supra) it was held that the amount of cheque cannot be more than amount due and in that view of the matter the proceedings under Section 138 were quashed and set aside. 12. In view of the above discussion this court finds that the submission of the respondent does not have any force in view of the judgments which are discussed above, though it is filed to show that the learned trial court has rightly passed the order while considering the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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