DILIP BAJRANGLAL BANSAL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) PRESENT Criminal Miscellaneous Application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as CrPC) has been preferred by the applicants herein original accused Nos.1 to 4 to quash and set aside the impugned complaint being Criminal Case No.634/2008 (old case No.2419/2007) pending in the Court of learned Metropolitan Magistrate Court No.15, Ahmedabad, for the offence under Section 138 read with Section 141 of the Negotiable Instrument Act, 1881 (hereinafter referred to as NI Act).

(2.) SHRI Panesar, learned advocate appearing on behalf of the applicants does not press the present application qua applicant Nos.1 and 2 original accused Nos.1 and 2 as they are signatory to the cheque in question which has been dishonored. However, has requested to make suitable observation that the defences which are available to them under the law are kept open which be considered by the learned trial Court at the time of trial. Hence, present application is dismissed as withdrawn qua applicant Nos.1 and 2 original accused Nos.1 and 2. Therefore, this Court is required to consider the present application qua applicant Nos.3 and 4 herein original accused Nos.3 and 4 only. [2.1] SHRI Panesar, learned advocate appearing on behalf of the applicant Nos.3 and 4 original accused Nos.3 and 4 has vehemently submitted that the applicant Nos.3 and 4 have not committed any offence as alleged under Section 138 read with Section 141 of the NI Act. It is submitted that so far as applicant No.3 original accused No.3 i.e. Nilesh Bajranglal Bansal is concerned, he was never the Director of the Company viz. M/s. Kiran Processors Private Limited, which has issued the cheque which has been dishonored. It is further submitted that so far as applicant No.4 herein original accused No.4 i.e. Bajranglal Bansal is concerned, he was the Director of the aforesaid Company in the year 1998. However, he has resigned/retired as a Director of the Company on 18.08.1998 and the intimation of the same was send to the Registrar of Companies in Form No.32 on 19.03.1998. Therefore, it is submitted that for the cheque in question dated 07.04.2007 issued by the aforesaid Company, applicant No.4 also cannot be held responsible and/or liable for the offence under Section 138 read with Section 141 of the NI Act. He has relied upon the additional affidavit in support of his above submissions.

(3.) HAVING heard Shri Panesar, learned advocate appearing on behalf of applicant Nos.3 and 4 and considering the impugned complaint as well as the affidavit, it appears that applicant No.3 was never the Director of Company which has issued the cheque which has been dishonored and applicant No.4 original accused No.4 i.e. Bajranglal Bansal was the Director of the accused Company upto 18.03.1998 and he resigned as Director on 18.03.1998 and intimation of his resignation was send to the Registrar of Companies in Form No.32 on 19.03.1998. The cheque in question has been issued on 07.04.2007 and therefore, when at the relevant time accused No.4 was not even the Director of the accused Company, he cannot be held liable and/or responsible for the offence under Section 138 of the NI Act for dishonor of cheque issued by the accused Company. Under the circumstances, the learned Magistrate has committed an error in directing to issue summons against applicant Nos.3 and 4 herein original accused Nos.3 and 4 for the offence under Section 138 read with Section 141 of the NI Act.