RAJIV RAMCHANDRA MALHOTRA Vs. GLOBAL TRADE FINANCE LTD

JUDGEMENT

(1.) HEARD the learned counsel appearing on behalf of the Applicants, learned counsel for the Respondent No.1 and the learned APP for the State.

(2.) ALL these applications can be disposed of by a common order since the Complainant is common and they are arising out of a complaint filed under section 138 of the Negotiable Instruments Act against the Applicants, who according to the Complainant are directors of the accused company, whose cheques were dishonoured. In all, there are 22 applications. Five applications are filed by the following directors viz. Mr. Amar Panghal, Mr.Rajiv R.Malhotra, Mrs. Kaccon Sethi, Mr. Komesh P. Rohira and Mr. Rajesh Pavitharan has filed two applications viz. Criminal Application No.2130 of 2010 and Criminal Application No.2131 of 2010.

(3.) SO far as submission on the point of averments is concerned, the learned counsel for the Applicants invited my attention to the complaint and submitted that the relevant averments were mentioned in the complaint which were sufficient for the purpose of admitting vicarious liability. So far as the question of resignation is concerned, it was submitted that the complainant has disputed the resignation of the directors. He relied on a judgment of the Division Bench in the case of Suhas Bhand (supra). It was submitted that in paragraph 33A of the said judgment, the Division Bench of this Court, after taking into consideration all the judgments, came to the conclusion that in the event of the resignation forms being disputed, the burden was on the accused to prove that he was no longer director at the time when the transaction had taken place. So far as the judgment of the Division Bench in the case of Saumil Dilip Mehta (supra) is concerned, he submitted that the issue before the Division Bench of this Court was not the same issue which is raised in this case and, therefore, the ratio of the said judgment will not be applicable. It was further submitted that the learned Single Judge of this Court while referring the judgment in the case of Vijay Maliya vs. State of Maharashtra and Anr. in Criminal Application Nos.4827, 4828, 4829 and 4830 of 2004 had held that the Division Bench in the case of Saumil Mehta had no occasion to consider the proposition as to whether the factum of resignation has to be established at the trial when disputed, as was the situation in the case before the said Court. So far as the judgment of this Court in the case of Kusum A. Bardeskar & Ors. (supra) is concerned, it is submitted that the said judgment was overruled as a result of the judgment of the Division Bench of this Court in the case of Suhas Bhand (supra) . He submitted that two other co-accused had filed criminal applications for quashing this complaint on the same grounds and this Court, by order dated 18th August, 2010 had rejected the said applications.