RAJU MOHANDAS MAHATANEY Vs. SHIVKISHAN MANIKCHAND MUNDRA

JUDGEMENT

(1.) The applicant is original accused No. 3. He has challenged the order passed issuing process in case No. 476/SS/11 pending before the Metropolitan Magistrate, 20th Court, Mazgaon, Mumbai. The complaint alleges offences punishable under section 138 read with section 141 of the Negotiable Instruments Act, 1881. The applicant states that he has been arrayed as accused on the footing that he is a director of the original accused No. 1, apart from the fact that the accused are based in Bengaluru in the State of Karnataka and, therefore, the learned Magistrate was obliged to take recourse to section 202(1) of the Code of Criminal Procedure as amended by the Amendment Act of 2005. In addition, the complaint does not disclose commission of any offence by the present applicant. It is stated that the applicant is a director of the applicant No. 1, however, the averments in paras 2 and 3 of the complaint are not enough to proceed against the applicant. The complainant has to aver and allege that the applicant is responsible for the business of the company and its affairs. The Negotiable Instruments Act requires the complainant to specifically state as to how the applicant was in charge of and was responsible to the company for the conduct of the business of the company. Such an averment is lacking and, therefore, the complaint should be quashed as against the present applicant. Additionally, the order issuing process is bad in law and should also be quashed. I have perused the complaint with the assistance of the learned Advocates appearing for the applicant and the original complainant-respondent No. 1 to this Criminal Application. Having carefully perused it and in its entirety, I am of the opinion that the complainant-respondent No. 1 has failed to allege as to how the applicant-original accused No. 3 can be arrayed as accused. The law is well settled that merely because the applicant is a director of the accused No. 1-company would not mean that he can be proceeded against together with the company for the offence punishable under section 138 read with section 141 of the Negotiable Instruments Act. Once the applicant is not proceeded against on the footing that he was in charge of and was responsible to the company for the conduct of the business of the company and such an averment is lacking, then, I have no alternative but to allow this application. The complaint as against the applicant being Complaint No. 476/SS/11 is quashed and set aside.

(2.) This criminal application is made absolute in terms of prayer Clause (c).