SURESH ANANDARAO PAWAR Vs. STATE OF A.P.

JUDGEMENT

(1.) The petitioners are accused Nos. 3 to 5 respectively of C.C.Nos. 550 & 551 of 2014 on the file of Metropolitan Magistrate, Visakhapatnam, among 5 accused for the offence punishable under section 138 of the Negotiable Instruments Act (for short 'the Act') respectively from the 2 private complaints of the respective 2 respondents selfsame entity against the 1st accused M/s. Pratibha Shipping Company Limited represented by its Chairman and Managing Director, the 2nd accused-Mr. Sunil A.Pawar and the accused Nos. 3 to 5 shown as Directors, authorized signatories of the 1st accused company.

(2.) The averments in the respective complaints of the 2 cases supra that were taken cognizance show that pursuant to the purchase order of the accused, the complainant delivered goods to the vessel of the accused on 02.08.2012 under delivery note LFT/002, 003 and 004/2012-13 vide shipping bill Nos. 2271 and 2270/2012 and after supply of the goods to the accused the complainant raised the invoices respectively and the accused initially issued cheque bearing Nos. 443195 for Rs. 8,97,475/- and 443196 for Rs. 9,25,150/- both on 02.09.2012 drawn on the Cosmos Co-operative Bank and before presentation of the cheques accused made request to the complainant not to present the said cheques supra with a request to replace by other cheques and issued the other cheques i.e., 727719 and 727720 of 31.12.2012 drawn on SBI Overseas Branch, Mumbai, and even before the presentation of the 2 cheques issued requested not to present expressing financial difficulties and to give other cheques and issued cheque bearing Nos. 838612 and 838613 dated 31.01.2013 drawn on said SBI Overseas Branch, Mumbai, against the account of accused by substitution of the earlier cheques and while so on 31.01.2013 when the complainant presented the 2 cheques in question through their banker Punjab National Bank, Visakhapatnam, the same were returned dishonoured due to insufficiency of funds on 02.02.2013 and complainant given the respective legal notice on 22.02.2013 by registered post and e-mail and the accused persons having received on 25.02.2013 said notices failed to pay and thereby from the accrual of cause of actions the 2 complaints are filed and the learned Magistrate taken cognizance of the 2 complaints against the accused persons.

(3.) In the 2 complaints in question there are no any specific allegations particularly in so far as A.3 to A.5 who are the petitioners respectively of the 2 quash petitions that they are responsible in any manner for day to day affairs of the company and there is nothing even to say any of them or all they jointly issued the cheques in question as drawers along with A.2 representing A.1 or otherwise. Pursuant to which the quash petitions are filed with the common contentions in both the quash petitions that the cheques in question were issued only by A.2 as Managing Director of A.1 company and A.3 to A.5 even from Form No. 32 are the Non-Executive Directors and no way responsible for the conduct of business of the company much less in-charge of the affairs and there is no even any averment as to how they are responsible for the alleged offence on behalf of the company from mere Non-Executive Directors and the learned Magistrate did not advert to it in taking cognizance. It is also averred that as per the catena of the expressions of the Apex Court, the taking of cognizance and issue of summons against the petitioners/accused 3 to 5 of the 2 cases are unsustainable and nothing but abuse of process and thereby the quash petitions are to be allowed.