BHARATI N WADHWANA Vs. ARJUN KISHANDAS JAISING

JUDGEMENT

(1.) HEARD Mr. Marwadi for the petitioners, Mr. Desai for respondent No. 1 and learned A. P. P. Mr. Galeria for the State.

(2.) THIS petition is filed for quashing the proceedings initiated against the petitioners under section 138 of the Negotiable Instruments Act. It was contended by Counsel for the petitioner Mr. Marwadi that the petitioner, who were original accused Nos. 4, 6, 8 and 11 in the original complaint, had resigned before or at the time when the cheque was issued, and therefore, they were not liable for prosecution. However, Counsel for respondent No. 1 Mr. Desai has strongly contended that as the fact of resignation of these directors was seriously disputed by the complainant and unless the accused proved in their defence before the trial Court that the directors-petitioners had resigned and that resignation was as per the provision of the Companies Act and as per the Articles of Association and Memorandum of Association of the company, that the resignation was accepted by other directors or by the company and it was duly recorded by the Registrar of Company, the submission of Counsel for the petitioners cannot be taken into consideration and therefore the petition is liable to be dismissed.

(3.) I find considerable force in the submissions made by Counsel for respondent No. 1 because if the respondent-complainant is not accepting the genuineness of the document (Admittedly the documents filed with the petition in their support by the accused are the xerox copies not even signed us true copies or certified copies), then the accused are required to prove it before the trial Court by adducing evidence in that regard, and therefore, the ejection raised by the respondents Advocate is upheld at this stage.