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CR.MA/3684/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 3684 of 2010
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KANTILAL
BECHARDAS PATEL & 3 - Applicant(s)
Versus
BHAVESH
MANSUKHLAL GANDHI,PROPRIETOR OF SUBHAM INDUSTRIES & 1 -
Respondent(s)
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Appearance :
MR
MRUGESH J PATEL for
Applicant(s) : 1 - 4.
None for Respondent(s) : 1,
Mr Kartik
Pandya, Addl.PUBLIC PROSECUTOR for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 23/04/2010
ORAL
ORDER
1. This
application is filed under section 482 read with section 401 of the
Code of Criminal Procedure, 1973 by the applicants-original accused
No.3 to 6 with a prayer to quash and set aside the criminal complaint
and a case registered pursuant to that being criminal case No.2762 of
2006 filed before the learned Metropolitan Magistrate Court No.15,
Ahmedabad for offences punishable under sections 138 and 141 of
Negotiable Instruments Act.
2. Learned
Advocate for the applicants contends that the applicants were not
Directors when the cheques dated 22.3.2006, 23.3.2006 and 24.3.2006
came to be issued and signed on behalf of the Company. It is further
submitted that by passing Resolution in the meeting of Board of
Directors of the Company held on 1.3.2006, the applicants herein were
removed from the office. Even later on their applications were
forwarded to the Chartered Accountant with the Registrar of Companies
about the above Resolution. In view of the above, it is submitted
that the applicants herein cannot be held responsible for the alleged
offences under Sections 138 and 141 of the Negotiable Instruments
Act, inter-alia, it is contended that there are no specific
averments against the applicants to the extent that they were
In-charge of business of the Company and were responsible for such
transactions and, therefore also the impugned complaint deserves to
be quashed and set aside.
3. On
perusal of the record, on a complaint filed by the complainant, the
learned Metropolitan Magistrate, Court No.19, Ahmedabad issued
summons as early as on 5.12.2006 under section 138 of the Negotiable
Instruments Act. Besides the averments made in the complaint
specifically refer to the applicants’ involving day-to-day business
affairs of the company and also is involved in the transaction of
the goods. It is further averred that statutory notice was given to
all the accused. It cannot be said at this stage that there are no
sufficient grounds qua the applicants herein who were involved in
the day-to-day affairs of the Company at the relevant point of time.
Even otherwise also there is nothing on record which will indicate
that the Registrar of Companies has accepted the Resolution of the
Board of Directors dated 1.3.2006 submitted and the applicants were
not on the record of the Registrar of Companies as Directors.
4. In
view of section 141 of the Negotiable Instruments Act and the proviso
therein, all the above contentions are nothing but a type of defence
that can be raised at the appropriate stage before the concerned
Magistrate and this court is, therefore, not inclined to exercise
powers under section 482 of the Code of Criminal Procedure by
quashing the complaint inasmuch as sufficient averments are there,
qua the applicants attracting ingredients of sections 138 and 141 of
the Negotiable Instruments Act and, therefore, this application
deserves to be rejected and is accordingly rejected.
[ANANT S DAVE, J.]
msp
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