Virendra Kumar Jain vs Mudrika Iron Pvt. Ltd. and Others

Ashim Kumar Roy, J.�The petitioner, who has been facing his prosecution under Section 138 of the Negotiable Instruments Act, in connection with the Complaint Case No. 38/C/2013, now pending before the learned Metropolitan Magistrate, 5th Court, Calcutta, has approached this Court for quashing of the same on the following grounds,

(1) At the relevant time, when the cheque in question was issued, he was no more the Director of the Company, the principal accused, having resigned from the Directorship with effect from November 3, 2007 and Form No. 32 under the Companies Act was submitted on November 21, 2007.

(2) In the four corners of the complaint, there was no allegation with reference to Section 141 of the Negotiable Instruments Act, as to how they were responsible to the Company for running its business.

So far as the first ground is concerned, the learned Counsel for the petitioner relies on two decisions of the Hon''ble Apex Court - one is in the case of Harshendra Kumar D. Vs. Rebatilata Koley Etc., and the another is in the case of Anita Malhotra Vs. Apparel Export Promotion Council and Another, .

So far as the second ground is concerned, the learned Counsel for the petitioner relies on four decisions of the Hon''ble Apex Court, namely, in the cases of S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla and Another, ; K.K. Ahuja Vs. V.K. Vora and Another, ; Central Bank of India Vs. Asian Global Ltd. and Others, and National Small Industries Corp. Ltd. Vs. Harmeet Singh Paintal and Another, .

On the other hand, the learned Counsel for the complainant/Opposite Party No. 1 vehemently opposed this application and with reference to the petitioner''s application under Section 205 of the Code of Criminal Procedure, being Annexure-P-5 to this application, contended that in the said application, it was categorically stated that the petitioner was one of the Directors of the principal accused, the Company, namely, Vikash Metal & Power Limited. He further submitted that this averment amounts to admission and is conclusive proof of the fact with regard to admission and no further proof is necessary. He, therefore, vehemently contended that the petitioner himself in his aforesaid application having admitted that he was one of the Directors of the said Company, cannot now take the plea that at the time of issuance of the cheque, he was no more the Director of the company, as much earlier he resigned from the said post.

In this regard, the learned Counsel for the opposite party No. 1 relies on two decisions - one is in the case of Nagindas Ramdas Vs. Dalpatram Ichharam alias Brijram and Others, and the another is in the case of Pradeep Kumar Malhotra and Another Vs. The State of West Bengal and Another, .

As a question has arisen as to whether when the cheque in question was issued, the petitioner was a Director of the principal accused, the Company, namely, Vikash Metal & Power Limited or not, a report was called for from the Registrar of Companies, West Bengal.

The learned Counsel appearing on behalf of the Registrar of Companies, West Bengal submitted the report and supported the case of the petitioner. The said report is already on record and it appears therefrom that at the relevant time when the cheque in question was issued, the petitioner was no more Director of the said Company. Merely, because in his application under section 205 Cr.P.C., it was stated the petitioner was a Director of the said Company that would not alter the correct position that at the time of issuance of the cheque he was no more the Director of the Company after submission of his resignation.

Having regard to the fact, the petitioner was not the Director of the Company at the material time when the cheque was issued, relying on the ratio of the decision of the Apex Court in the case of Harshendra Kumar D. Vs. Rebatilata Koley & Ors. (supra) and Anita Malhotra Vs. Apparel Export Promotion Council & Anr. (supra), the impugned prosecution against the petitioner stands quashed.

This criminal revision is allowed and stands disposed of. Urgent Photostat certified copy of this order, if applied for, be given to the parties at an early date.