MEGHNA BRIJEN SHAH(GORASIA) Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Present application has been filed under Section 482 of the Criminal Procedure Code (for short "Cr.P.C."), by the petitioner accused No.2 to quash and set aside the Criminal Case No. 2172 of 2004 filed in the Court of Metropolitan Magistrate, Court No. 21, Ahmedabad under Section 138 of the Negotiable Instrument Act (for short "the N.I.Act").

(2.) A criminal case has been filed by the respondent No.2 original complainant against the petitioner and two others for the offence punishable under Section 138 of the N.I.Act alleging inter-alia that original accused no. 1 is a Private Limited Company, incorporated under the provisions of the Companies Act. Accused No. 2 to 4 have introduced themselves to be the Directors of Accused No.1 Company. Accused No.2 is the daughter of Mr.Brijen Gokuldas Shah (Gorasia) and said Mr.Brijen is a brother-in-law of the complainant's elder brother Mr.Hasmukh Babulal Parekh. It is also further averred in the complaint that accused Nos.2 to 4 are in total control of all acts, deeds and affairs of the accused No.1 Company. It is also averred in the complaint that the accused have given cheque No. 272530 of State Bank of Punjab Limited, C.G.Road Branch, Ahmedabad dated 10.01.2004 of Rs.50 lacs to the complainant with an assurance that the same will be positively paid on presentation. The complainant presented the cheque to his banker for realization, but the said cheque was returned unpaid by the banker on account of insufficiency of funds in their accounts. It it averred in the complaint that the complainant deposited the said cheque on 10.01.2004 for payment, but the same was returned unpaid with an endorsement "Today's opening balance insufficient". Thereafter, the complainant was constrained to serve legal notice dated 19.01.2004. Notice of accused No.1 returned unserved. After waiting for statutory period, as the said amount was not paid, the complainant has filed aforesaid complaint against the accused persons and the learned trial Court has issued summons against the accused for the offence punishable under Section 138 of the N.I.Act and therefore, the petitioner original accused No.2 has preferred the present application under Section 482 of the Cr.P.C. to quash the said complaint.

(3.) Mr. Dave, learned Advocate appearing on behalf of the petitioner has vehemently submitted that the petitioner original accused No.2 was neither Director of the original accused No.1 Company nor signatory of the cheque in question, and therefore, it cannot be said that the petitioner has committed any offence as alleged under Section 138 of the N.I.Act. It is further submitted that in fact the petitioner was serving as Manager, H.R. And Chief Operating Officer, however, she has resigned as Chief Operating Officer vide resignation letter dated 01.09.2004 and the same was accepted and the same was much prior to the impugned cheque in question, therefore, no case is made out against the petitioner for the offence under Section 138 of the N.I.Act as alleged. Therefore, it is requested to allow the present application and quash and set aside the complaint qua the applicant.