MADANLAL TAPARIA Vs. BANK OF RAJASTHAN LTD

JUDGEMENT

(1.) HEARD Counsel for the parties. Rule. Rule made returnable forthwith by consent. Mr. Kamaldeep waives notice for respondent no. 1. Mr. Saste, A. P. P. , waives for respondent No. 2. As short question is involved, petition is taken up forthwith for final disposal by consent.

(2.) RESPONDENT No. 1 laid criminal action in the Court of Metropolitian magistrate, 43rd Court at Ballard Pier, Mumbai, being C. C. No. 2323/s/1999 against 10 accused persons. The petitioners are named as accused Nos. 7 and 8 respectively. The complaint is in respect of cheque purportedly dated 30th June, 1999 and presented on 1st July, 1999, which was eventually returned as dishonoured. After issuing statutory notice, the abovenumbered complaint has been instituted. In the complaint, it is averred that accused nos. 2 to 9 are the Directors and accused No. 10 is the Vice-President of accused No. 1. Undoubtedly, when the accused is a company, the officers, who are in charge of the company at the time when the offence is allegedly committed alone would be responsible for the criminal action. In the present case, petitioner No. 1 has resigned as Director on 30th May, 1996 and petitioner No. 2 on 16th November, 1996. The change has been reported to the Registrar and duly notified in the Register as reflected from Form 32. In other words, the grievance of the petitioners before this Court is that they were not the Directors of the accused No. 1 Company at the relevant time nor in charge of the affairs of the Company. Moreover, no case is made out in the complaint that the petitioners were in charge of the affairs of the accused-company and continued as Directors at the relevant time when the cheque was presented or dishonoured and statutory notice was sent and not complied with. On this basis, the petitioners have approached this Court for quashing of the criminal action qua them.

(3.) TO resist the present petition, Counsel for the respondent No. 1 has placed reliance on the decision of the Andhra Pradesh High Court reported in 1999 (3) All. M. R. (JOURNAL) 5 in the case of (Bharat Kumar Modi and others v. Pennar Paterson Securities Ltd. Hyderabad and others), as well as of our high Court reported in A. I. R. 1983 Bom. 1 in the case of (Om Prakash berlia and another v. Unit Trust of India and others ). Counsel for the respondent No. 1 has also contended that the complaint will have to be read as a whole and, if so read, there is averment in the complaint that the petitioners were directors and whether they continued to be directors at the relevant time is a matter of evidence. On this basis, it is contended that this petition deserves to be dismissed. To buttress this contention, reliance is placed on the decision of the Apex Court reported 2003 (1)Bom. C. R. (S. C.)534 : 2003 Bom. C. R. (Cri.) (S. C.)158 : 2002 (8) S. C. C. 236 in the case of (Raj Lakshmi Mills v. Shakti Bhakoo ).