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CR.MA/6944/2011 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 6944 of 2011
To
CRIMINAL
MISC.APPLICATION No. 6946 of 2011
=========================================
ABL
BIOTECHNOLOGIES LTD & 2 - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================
Appearance :
MR
JAYESH A KOTECHA for
Applicant(s) : 1 - 3.MR RT SONGARA for Applicant(s) : 1 - 3.
PUBLIC
PROSECUTOR for Respondent(s) : 1,
MR RAJESH H SAHJANI for
Respondent(s) : 2,
MR HARDIK D MUCHHALA for Respondent(s) :
2,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 24/08/2011
ORAL
ORDER
1.0. As
common question of law and facts arise and between the same parties,
they are disposed of by this common order.
2.0. Criminal
Miscellaneous Application No.6944 of 2011 has been preferred by the
petitioner to quash and set aside the impugned complaint / criminal
case no.155 of 2009 pending in the Court of learned Metropolitan
Magistrate (Special Negotiable Instruments Act), Ahmedabad.
2.1. Criminal
Miscellaneous Application No.6945 of 2011 has been preferred by the
petitioner to quash and set aside the impugned complaint / criminal
case no.156 of 2009 pending in the Court of learned Metropolitan
Magistrate (Special Negotiable Instruments Act), Ahmedabad.
2.2. Criminal
Miscellaneous Application No.6946 of 2011 has
been preferred by the petitioner to quash and set aside the impugned
complaint / criminal case no.158 of 2009 pending in the Court of
learned Metropolitan Magistrate (Special Negotiable Instruments Act),
Ahmedabad.
3.0. At
the outset, it is required to be noted that earlier present
applications are ordered to be dismissed as withdrawn qua petitioner
nos.1 and 2 and therefore, this Court is required to consider all
these applications qua petitioner no.3 herein-original accused no.6
only.
4.0. Respondent
No.2 herein-original complainant has instituted aforesaid three
criminal cases against the petitioner for the offence punishable
under Section 138 of the Negotiable Instruments Act, 1881 for
dishonour of cheques in question. That the learned Metropolitan
Magistrate has issued summons against the petitioner no.3 for the
offence punishable under Section 138 of the Negotiable Instruments
Act and hence petitioner no.3-original accused no.6 has preferred the
Criminal Miscellaneous Applications under Section 482 of the Code of
Criminal Procedure to quash and set aside the impugned complaint/
criminal cases qua petitioner no/3-original accused no.6.
5.0. Shri
Kotecha, learned advocate for the petitioner no.3-original accused
no.6 has vehemently submitted that as such petitioner no.3-original
accused no.6 was
serving as Liaison Officer in the original accused no.1 company and
therefore, he cannot be held vicariously liable under Section 141 of
the Negotiable Instruments
Act for the offence under Section 138 of the Negotiable Instruments
Act, which is alleged to have been committed by the other accused
persons. Therefore, it is requested to quash and set aside the
impugned complaint/ criminal cases against the petitioner.
6.0. All
these applications are opposed by Shri Hardik Muchhala, learned
advocate for the respondent no.2-original complainant. It is
submitted that as such there are necessary averments and allegations
in the complaint against the petitioner that the petitioner was in
day to day affairs and management of the company. It is submitted
that what were the duties of the Liaison Officer and whether he can
be said to be in day to day affairs of the company are all questions,
which are required to be considered at the time of trial on leading
proper evidence. It is submitted that all these defences are not
required to be considered at this stage while considering application
under Section 482 of the Code of Criminal Procedure. It is submitted
that not only that but even initially despite the service of summons
the petitioner no.3-original accused no.6 did not appear before the
trial Court and only after the warrants were issued, he had appeared
before the the learned trial Court. It is submitted not only that but
he has also submitted the purshis before the learned trial Court
submitting that at present he and one another person are working as
Higher Officer of the company and running the affairs of the company
and that they have also paid Rs. 3 lacs towards part payment and
talks for settlement are going. It is submitted that by submitting
the purshis the petitioner has also assured the learned trial Court
that he shall fully
cooperate in the trial.
Therefore, it is requested to dismiss all the Criminal Miscellaneous
Applications.
7.0. Heard the
learned advocates for the respective parties at length. The summons
has been issued against the petitioner no.3-original accused no.6 for
the offence punishable under Section 138 r/w 141 of the Negotiable
Instruments Act for dishonour of the cheques, which are issued by the
accused no.1 company. It is the case of the petitioner that as the
petitioner was serving as Liaison Officer, he cannot be held
vicariously liable under Section 141 of the N.I. Act for the offence
under Section 138 of the N.I. Act alleged to have been committed by
the original accused no.1 company. It is to be noted that as such
there are necessary averments and allegations in the complaint
against the petitioner-original accused no.6 that petitioner was also
in day to day affairs and management of the accused no.1 company,
which are sufficient at this stage. What were the duties of the
Liaison Officer -petitioner and whether he can be said to be in day
to day affairs of the company are all questions, which are required
to be considered at the time of trial on leading proper evidence. As
stated above, as there are necessary averments and allegations
against the petitioner-original accused no.6 that he was also in day
to day affairs and management of the accused no.1 company, the
impugned criminal cases are not required to be quashed and set aside
at this stage in exercise of powers under Section 482 of the Code of
Criminal Procedure.
8.0. It
is also required to be noted that even after the service of summons
the petitioner did not remain present before the learned
trial Court and the learned trial Court was required to issued
warrant against the petitioner and only thereafter the petitioner
appeared before the learned trial Court. Not only that but he has
also submitted the purshis before the learned trial Court (which is
at page 37) submitting that at present he and one another persons are
working as higher officer of the company and that they have paid Rs.
3 lacs towards part payment and talks for settlement are going. He
has also assured the learned trial Court that he shall fully
cooperate in the trial. Considering the aforesaid facts and
circumstances of the case, the impugned complaints/ criminal cases
are not required to be quashed in exercise of powers under Section
482 of the Code of Criminal Procedure as even according to the
petitioner, even as on today also he is in charge of the company and
running the affairs of the company.
9.0. In view of
the above and for the reasons stated above and keeping all the
defences which are available to the petitioner are kept open, all
these applications are dismissed. Notice discharged. Ad-interim
relief granted earlier stands vacated forthwith.
(M.R.SHAH,
J.)
kaushik
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