Devesh vs Bharat Tyrers

A.K. Sharma, J.—The case is listed today for final hearing at motion stage. Arguments heard.

The petitioner has filed this petition u/s 482 of the Code of Criminal Procedure for quashing the proceeding of complaint case No. 2197 of 2011 pending in the Court of Judicial Magistrate First Class, District Rewa (MP) for offence punishable u/s 138 of Negotiable Instruments Act.

The brief facts of the case are that a complaint for dishonor of cheque u/s 142 of the Negotiable Instruments Act and another offence punishable u/s 138 of the Negotiable Instruments Act, has been filed against the petitioner. The complainant is the owner of the Firm having an agency of vehicles of Ecofast Motors Private Limited. It is alleged in the complaint that to compensate the loss, petitioner, was the then Director of the Company, came alongwith other Directors and assess the amount of compensation and two post dated cheques have been issued for dates 15.11.2010 and 20.3.2011. The cheques were dishonored as the payment was stopped by the Company therefore, complainant/respondent has filed a complaint u/s 138 of the Negotiable Instruments Act.

Learned counsel for the petitioner has submitted that petitioner has resigned from the post of director vide letter dated 21.9.2010, copy of which has been filed as Annexure-1. He has been relieved from all his duties and responsibilities as director vide letter dated 22.9.2010 (Annexure-2). Copy of affidavit in this regard is also filed as Annexure-3, according to which all the dues of the company will be paid by the Ecofast Motors Private Limited and there is no responsibility/liability of the petitioner for payment of any dues of the company.

Learned counsel for the petitioner further submitted that since the petitioner has resigned from the post of director and his resignation has been accepted by the Company, therefore he could not be prosecuted for the offence punishable u/s 138 of the Negotiable Instruments Act. In support of his argument, he cited a judgment of Hon''ble Apex Court in the matter of Harshendra Kumar D. Vs. Rebatilata Koley Etc., in which it has been held that where the one director of the company has resigned from service before issuance of cheque, he cannot be vicariously liable for the offence punishable u/s 138 of Negotiable Instruments Act because there was no proof that he was responsible for day-today affairs of the Company. Criminal proceeding against him is in gross negligence and injustice, therefore quashed under revisional jurisdiction. Learned counsel for the petitioner has also cited a judgment of Hon''ble Apex Court in the matter of Saroj Kumar Poddar Vs. State (NCT of Delhi) and Another, in which it has been held that for the offence of dishonor of cheque by companies, criminal complaint against the petitioner and its director including appellant in where the defence of the appellant that he resigned from directorship of the company before issuance of cheques no averment in the complaint as to how the appellant was responsible, the requirement of Section 141 of Negotiable Instruments Act is not satisfied and offence against the appellant is not disclosed order taking cognizance against the appellant is set aside.

Learned counsel for the respondent, on the other hand, submitted that post dated cheques were issued when petitioner was the director of the company. He has drawn the attention towards the notice Annexure-5 filed by the petitioner, sent by the respondent Company that petitioner Devesh alias Devashish Banerjee was also visited along with other Directors namely Govind Prasad Soni, Shravan Kumar Shukla and Vikas Verma and ascertained the liabilities towards complainant and issued two cheques, cheque No. 135018 for Rs. 88,000/- dated 15.11.2010 and cheque No. 135019 for Rs. 45,000/- dated 20.3.2011, therefore the petitioner is also liable for dishonor of the cheque and complaint filed against him is maintainable and complaint cannot be quashed on the ground that later on the petitioner has ceased to be director of the company.

Learned counsel for the respondent has cited the judgment of the Hon''ble Apex Court in the matter of Malwa Cotton and Spinning Mills Ltd. Vs. Virsa Singh Sidhu and Others, in which it has been held that the High Court is not justified in quashing the proceedings u/s 482 of Cr.P.C. against the directors of the company alleging commission of offence punishable u/s 138 of Negotiable Instruments Act on the ground that he had resigned from the directorship before the cheques were issued. It is further held that factual disputes were involved which were required to be established in trial and High Court was not justified in quashing the proceedings while dealing with applications u/s 482 of Cr.P.C.

On perusal of the complaint, it is clear that petitioner was the director on the date of which cheques were issued and the judgment cited by the counsel for the petitioner relate to the cases where the appellant has resigned from the directorship before the cheques were issued.

In the present case, petitioner has taken active part before issuing the cheques were issued, therefore the judgments cited by the counsel for the petitioner are not applicable to the present case. On the other hand, looking to the allegation made in the complaint regarding role of the petitioner in assessing the liabilities and issuance of cheques along with other directors, he could not be exonerated on the ground that he has resigned later on from the post of directorship. Therefore, no interference u/s 482 of Cr.P.C. is required. The petition is dismissed.