KUSUM A BARDESKAR Vs. BABULAL TARACHAND SHAH

JUDGEMENT

(1.) RULE . Rule made returnable forthwith by consent. Heard the learned Counsel for the Petitioners and Respondents. This is a criminal writ petition filed under Article 227 of Constitution of India and under section 482 of Code of Criminal Procedure seeking a relief of quashing the criminal case no.76/S/93 pending before the 4th Additional Chief Metropolitan Magistrate, Girgaum, Mumbai and also seeking to challenge the correctness of the order dated 30th April, 1992 rejecting the application of the petitioner for dropping the above case. The brief facts of the case are under:

(2.) THE petitioner Nos.1 and 2 are Directors of Petitioner No.3. It appears that on 25th May, 1993 five cheques for a sum of Rs.50,000/- each were drawn on Bank of Baroda, Borivli (W) Branch, were handed over to original complainant being Respondent No.1 herein for a valuable consideration towards dues. The above cheques were issued by Petitioner No.1 as a Director of Petitioner No.3. These cheques, after being presented for encashment have been dishonoured. Under these circumstances the Respondent No.1 filed the above criminal case No.76/S/93 before the Additional Chief Metropolitan Magistrate, 4th Court, Girgaum, Bombay under section 138 of the Negotiable Instruments Act against the petitioners. It appears that the learned Additional Chief Metropolitan Magistrate presiding over the said Court at a later point of time issued process in the matter against the Petitioners. Thereafter, the Petitioners approached the same Magistrate Court by their application dated 26th October, 1994 seeking the relief that the Court should drop the proceedings in its entirety as the complaint does not disclose any cause of action and also that the petitioner No.2 was not the Director of petitioner No.3 at the relevant time. It appears that the petitioners have also submitted the form No.32 of the Companies Act pointing out that the Petitioner No.2 ceased to be a Director of the said Petitioner No.3 Company with effect from 22nd August 1989. Whereas the said cheques were signed by the petitioner No.1 for and on behalf of the Petitioner No.3 on 25/5/1993. Therefore, the Petitioner No.2 ought not to be held as an accused under section 138 of Negotiable Instruments Act. Ultimately, after hearing all the parties the learned Additional Chief Metropolitan Magistrate has rejected the above application for dropping of proceedings by his order dated 30th April, 1997. Perused the same.

(3.) FROM the above it is clear that the criminal prosecution cannot proceed any further against the Petitioner No.2 who had resigned as far back as on 22/8/1989. Under the aforesaid facts and circumstances the proceedings against the Petitioner No.2 in the above criminal case No.76/S/93 pending before the Additional Chief Metropolitan Magistrate, 4th Court, Girgaum, Mumbai, is required to be quashed and set aside.