MANSINH B KAPADIA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Heard the learned Counsel appearing on behalf of the petitioner and respondent.

(2.) The petitioner is challenging an order of issuance of process against the petitioner passed by the Metropolitan Magistrate, 20th Court, Mazgaon mumbai in the case No. 1271/s/93. It is submitted by the learned counsel for the petitioner that the petitioner resigned from the company on 24th December, 1997 and intimation was given to the Registrar of Company on 28th January, 1998. The cheques on the basis of which the complaint was filed were issued on 28th March, 1998 and 28th June, 1998. The intimation about the dishonour was received on 31st July, 1998 by the complainant and thereafter, complaint was filed. The learned counsel for the petitioner has annexed xerox copy of the certified copy of the Form-32 issued by the Registrar of Companies. It is submitted that the petitioner was not concerned with the conduct of business of the company on the date on which cheques were issued and therefore, he was not incharge and responsible for affairs of the companies during the relevant period. It was further submitted that this is a fit case where the process issued was liable to be quashed. It was also submitted that in other complaint between the same parties namely Case No. 1668/s/1998, the complainant had made an application for deleting name of the present petitioner in that complaint which was granted by the learned metropolitan Magistrate. Therefore, it was submitted that this is an additional fact which indicates that the petitioner was not director at the relevant period.

(3.) The learned counsel for the respondent has invited my attention to the affidavit in reply filed by the respondent. It is submitted that they are seriously disputing the fact regarding resignation of the present petitioner. It is submitted that the petitioner was a Chartered Accountant and post-dated cheques were issued for repayment of the loan which was given to the company. It was on his advice that the cheques were dishonoured. It is submitted that in other complaint, an application was made for deleting the name of the present petitioner and few other directors, since various applications were being made to protract the litigation, the names were deleted. It is submitted that after the names of the four other directors were deleted, remaining accused left India and are absconding at the moment. This fact is seriously denied by the learned counsel for the petitioner.