KANCHAN SUNIL MANSIGHANI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) RULE. RULE made returnable forthwith.

(2.) RESPONDENT No. 1 is the original complainant and the present petitioner is the original accused No. 2. It is the case of the complainant that accused No. 1 is company registered under the Companies Act, 1956. Accused Nos. 2 and 3 are its directors. Complainant has been dealing with the accused persons in respect of sale and purchase of shares and stocks. On 1-8-2008, complainant made a payment of Rs. 25 lac to the accused No. 1 by a cheque drawn on the State Bank of India, Shivaji Park Branch, Bombay. Cheque was encashed on 30-7-2008. Accused No. 3 issued the cheque for and on behalf of the accused No. 1 to the complainant towards the repayment of Rs. 25 lac. Said cheque was drawn on Axis Bank Limited Bandra Branch in favour of the complainant. Cheque was presented on 20-11-2008 for encashment. However, it was returned dishonoured on 24-11-2008 with remarks 'Funds Insufficient'. This intimation was received by the complainant on 4-12-2008. In spite of service of the notice, accused persons failed to make the payment within the stipulated period. Hence, complaint.

(3.) THE learned counsel for the petitioner raised two grounds in support of petition. Firstly, the cheque was allegedly issued by the accused No. 3 for and on behalf of the accused No. 1/company in favour of the complainant on 30th July, 2008 when there was no legally enforceable debt or liability to be discharged by the accused persons because according to the complainant herself, she had made payment of Rs. 25 lac to the accused No. 1 on 1 -8-2008 for investment. Thus, the payment was allegedly made by the complainant to the accused for investment two days after the disputed cheque was issued by the accused No. 3 in favour of the complainant. Second ground is that the accused No. 2, i.e., the present petitioner had resigned from the post of director of the accused No. 1 company with effect from 5-9-2008 and for that purpose form No. 32 was filled and submitted to the Registrar of Companies and thus, with effect from 5-9-2008, she is not a director. THE cause of action, if any, arose when the cheque was dishonoured and in spite of service of notice, payment was not made within the stipulated period. Notice was issued on 20-12-2008 and it was allegedly served on 24-12-2008. When the payment was not made within 15 days from that date, then only the offence under section 138 committed. Infact since long before that date the petitioner was not director and, therefore, she could not be held guilty for the offences punishable under sections 138 r/w section 141 of the Negotiable Instruments Act.