GOPAL RAMOURTI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Rule, service of which is waived by learned APP, Mr.Dabhi and learned advocate, Mr.Japee on behalf of respondent nos.1 and 2 respectively. The petitioners have invoked Article 226 of the Constitution and provisions of Section 482 of the Code of Criminal Procedure, 1973 (for short "the Code") for the relief of orders dated 31-1-2001 in Criminal Case No.782/1998 and dated 30th April 2007 in Criminal Revision Application No.13/2001 being set aside.

(2.) Relevant facts in brief are that the complainant representing respondent no.2 initially filed Criminal Complaint No.52/1997 in the Court of learned Chief Judicial Magistrate for the offence under Section 132 of the Negotiable Instruments Act, 1881 (for short "the Act"), upon three cheques issued in December 1996 and January 1997 having been returned on 7-4-1997 by the bank as the accused had not maintained sufficient balance. That complaint showed as a complainant, Pinakin C. Shah, Executive of M/s. Yash Packaging and the only accused was described as Mr.L.N.K. Murthy, Managing Director, Care Unipack Private Limited. After registering the complaint on 21-5-1997, enquiry was ordered to be held under Section 202 of the Code and by order dated 13-4-1998, after finding a prima facie case, process was ordered to be issued. Thereafter, the original complainant moved an application to join as accused no.2, one Mr.C.V.S. Desoza, as the Director and authorized signatory of the company, since cheques in question appeared to have been signed by that person. The Court allowed the application to join him as an accused person by exercising its power under Section 319 of the Code by order dated 3-5-2000. Thereafter another application dated 4-1-2001 was made to submit that the petitioners herein were responsible directors of the company and, hence, it was necessary and in the interest of justice to join them as the accused persons. That application was allowed by the impugned order dated 31-1-2001, wherein, relying on judgment of this Court in Bhavesh Bharatbhai Mehta and Others v. State of Gujarat and Another [1999 (2) GLR 1323], it was held that all the directors of the company were not required to be served with notice, if the company were accused of commission of offence under Section 138 of the Act. It was observed that the Court had already taken cognizance of the offence against the company and its managing director and, hence, in exercise of powers under Section 319 of the Code, the petitioners were ordered to be joined as accused persons and summoned by issuing process.

(3.) The petitioners filed Criminal Revision Application No.13/2001 to challenge the aforesaid order, which was rejected by the second impugned order dated 30th April 2007. Learned Additional Sessions Judge, while rejecting the Revision Application, went further and observed that even if the revisionists were not given opportunity of hearing before impleading them as the accused, it would not be a ground to upset the impugned order and even if they were appointed as additional directors of the company after issuance of the disputed cheques, then also they could not avoid their liability with regard to the responsibility of the company. The Court further ordered :