Criminal Writ Petition No. 3188 of 2014. Case: Lata Pramod Dave Vs Mode Export Private Limited and Ors.. High Court of Bombay (India)
| Case Number | Criminal Writ Petition No. 3188 of 2014 |
| Counsel | For Appellant: Yashpal Thakur i/by PKA Advocates and For Respondents: Kapil Dave i/by Santosh Thakur, Advs. |
| Judges | Dr. Shalini Phansalkar Joshi, J. |
| Issue | Code of Criminal Procedure, 1973 (CrPC) - Sections 202, 482; Constitution of India - Article 227; Negotiable Instruments Act, 1881 - Sections 138, 141 |
| Judgement Date | March 17, 2016 |
| Court | High Court of Bombay (India) |
Judgment:
Dr. Shalini Phansalkar Joshi, J.
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Rule. Rule is made returnable forthwith, by consent.
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Heard learned counsel for both the parties and learned A.P.P. for the Respondent No. 2-State.
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By this Petition, preferred under Section 482 of Cr.P.C. and Article 227 of Constitution of India, Petitioner challenges the order dated 16th September 2013 passed by Metropolitan Magistrate, 7th Court at Dadar, Mumbai, in Criminal Complaint No. 1675/SS/2013 of issuing process against her for the offence punishable under Section 138 r/w. 141 of Negotiable Instruments Act.
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Facts of the Petition are to the effect that, Respondent No. 1 herein had, on the request of Original Accused No. 2, advanced financial facilities by way of Inter Corporate Deposit for the Accused No. 1 i.e. M/s. Swajay Finance Private Limited to the extent of Rs. 1,50,00,000/-. Against the said Inter Corporate Deposit availed by Accused No. 1, Accused No. 2 pledged 2,25,000 Shares of M/s. Usher Agro Limited with Respondent No. 1. Accordingly, a Loan Agreement was executed by and between Respondent No. 1 and Accused No. 1 on 13th August 2010. The period stipulated in the said Loan Agreement was, on the request of Accused No. 2, extended from time to time and finally it was renewed for 180 days from 27th August 2012 to 26th February 2013 by virtue of a Loan Agreement executed on 5th September 2012. As per the terms of the Loan Agreement, Accused No. 1 issued seven post dated cheques in favour of Respondent No. 1 as follows:--
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Out of these 7 post dated cheques, 6 cheques of the amount of Rs. 2,70,000/- each were honoured, when presented for payment by Respondent No. 1. However, the last cheque bearing No. 952611 for the amount of Rs. 1,50,00,000/- came to be dishonoured for the reason "Payment Stopped by Drawer", vide Bank Memo dated 6th March 2013. Hence, after issuance of statutory demand notice dated 4th April 2013, Respondent No. 1 filed complaint under Section 138 r/w. 141 of Negotiable Instruments Act against Accused No. 1 - M/s. Swajay Finance Private Limited and its three Directors, including Managing Director - Vinod Kumar Chaturvedi (Accused No. 2) the present Petitioner and her husband-Pramod Dave.
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On this complaint, after recording verification of the representative of Respondent No. 1, the Trial Court conducted requisite inquiry under Section 202 of Cr.P.C. and on being satisfied with the material produced on record, the Trial Court was pleased to issue process against all the four Accused vide its order dated 16th September 2013.
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Being aggrieved by the same, Original Accused No. 4 - the present Petitioner has preferred this Writ Petition contending, inter alia, that she has ceased to be the Director of Accused No. 1-Company w.e.f. 1st January 2013, in view of the resignation letter tendered by her to the said Company. Therefore, at the relevant time, when the offence was committed, she was not on the Board of Directors. Even during her tenure as Director, she had neither executed, nor signed any document on behalf of the Company. In support of her contention, the Petitioner has relied upon her letter of resignation dated 1st January 2013, which bears the acknowledgement and endorsement of Accused No. 1-Company of receipt of her resignation on the same date. She has also produced on record the copy of "Form-32" and Annual Return duly filled by Accused No. 1 with the Registrar of Companies, Mumbai, which, according to learned counsel for the Petitioner, constitute prima facie evidence with regard to the Petitioner's resignation w.e.f. 1st January 2013.
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It is urged by learned counsel for the Petitioner that, once the Petitioner has duly discharged her obligation as a Director by tendering resignation letter dated 1st January 2013 and expressed her desire to discontinue with Accused No. 1 - Company and once her letter of resignation is also duly accepted and acted upon and also found reflected in "Form-32" and Annual Return of Accused No. 1 - Company, she can no more be held liable for any of the acts committed by Accused No. 1 -Company or its Directors and, therefore, issuance of process against her for dishonour of the cheque, which took place subsequent to her resignation, is clearly an abuse of the process of law. Learned counsel for the Petitioner, therefore, by relying upon the various authorities of the Apex Court and this Court, has strenuously urged for quashing of process issued against the Petitioner by the Trial Court.
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Per contra, learned counsel for Respondent No. 1 has fully supported the impugned order of the Trial Court by contending, inter alia, that the complaint filed before the Trial Court contains sufficient averments, as required under Section 141 of Negotiable Instruments Act. The contents of the complaint clearly show that the Petitioner herein, along with the other Directors, actively participated in negotiation and in execution of the documents in respect of the loan transaction. Moreover, at the relevant time, the Petitioner was in-charge of and responsible for the conduct of the business of Accused No. 1 - Company. It is, therefore, urged that, on the basis of these averments in the complaint, the Trial Court has rightly issued process against the Petitioner. Hence, it will not be proper on the part of this Court, in exercise of its powers under Section 482 of Cr.P.C. or Article 227 of Constitution of India, to quash the process issued against the Petitioner, as, prima facie, no illegality, impropriety, much less, perversity is found in the impugned order of the Trial Court.
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As to the alleged resignation tendered by the Petitioner from the post of 'Director', it is submitted that it was subsequent to the transaction in question and also subsequent to the issuance of post dated cheques. Moreover, the alleged resignation is also a disputed fact as there is every reason to believe that it was ante-dated. The copy of the Resolution passed by Accused No. 1 - Company accepting her resignation, is not produced on record. Hence, according to learned counsel for Respondent No. 1, in the absence of any uncontrovertable and unimpeachable evidence produced on record to...
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