CRMMO/70/2008 of PREM KALWANI Vs MS HIM TEKNO FORGE LTD. on 30 December 2011

1. M/s Him Tekno Forge Limited, registered office at Sai Road, Baddi, District Solan, through its Company Secretary and authorized person Sh. C.B.Gupta. District Solan, through its Company Secretary and authorized person Sh. C.B.Gupta.

...Respondent/Complainant.

2. Allied Asia Gears Limited, through its Managing Director, registered office CEPZ Plot No. S-11/12, Sub Plot No. 7, Marol Andheri East, Mumbai. registered office CEPZ Plot No. S-11/12, Sub Plot No. 7, Marol Andheri East, Mumbai.

3. Mr. Vikas Tourani S/o Sh. Ramesh Chand Tourani, resident of 4, Palsikar Colony, Indore, Madhya Pradesh. Palsikar Colony, Indore, Madhya Pradesh.

4. Mrs. Megha Tourani W/o Sh. Lalit Tourani, resident of 4, Palsikar Colony, Indore, Madhya Pradesh. Colony, Indore, Madhya Pradesh.

5. Mr. Arjun T.Kukareja, 17/18, Gulmohar Extension, Indore, M.P.-452001. 452001.

6. Mr. Ramesh Chand Tourani 72-B, Prem Nagar, Indore, M.P.-452001. ..Proforma Respondents. ..Proforma Respondents.

Coram

The Hon’ble Mr. Justice Kuldip Singh, Judge.

Whether approved for reporting ? No

For the Petitioner : Mr. R.K.Gautam, Senior Advocate, with Mr. Mehar Chand, Advocate.

For the Respondents : Mr. J.L.Bhardwaj, Advocate for respondent No.1.

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Kuldip Singh, Judge (Oral)

The petitioner has prayed for quashing of complaint No.

53/3 of 2003 pending in the Court of learned Sub Divisional Judicial Magistrate, Nalagarh, summoning order and order dated 30.7.2005.

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1Whether reporters of Local Papers may be allowed to see the Judgment ? yes

2. The facts, in brief, are that respondent No.1 filed complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘Act’) against proforma respondent No.2 and some others including petitioner who has been impleaded as accused No.4 in the complaint. In brief the allegations in the complaint are that proforma respondent No.2 is a Company which has several Directors including petitioner. The cheque No.205515 dated 23.12.2002 amounting to ` 10,00,000/- was issued by all the accused including petitioner. The cheque was bounced on presentation and despite notice the amount was not paid to the complainant. The complainant ultimately filed complaint under Section 138 of the Act. The learned Sub Divisional Judicial Magistrate issued the process against the accused including the petitioner.

3. The petitioner filed an application before the learned Magistrate for discharging him on the ground that petitioner has been removed as Director of the accused-Company on 30.9.1999 whereas the cheque in question was allegedly issued on 23.12.2002. The complainant contested the application by filing reply. It was pleaded that complainant was not aware of the allegations regarding removing of petitioner as Director of the Company but on the basis of the documents placed on record, the petitioner is not entitled to discharge as an accused. The learned Sub Divisional Judicial Magistrate vide order dated 30.7.2005 rejected the application of the petitioner primarily on the ground that he has no jurisdiction to drop the proceedings against the petitioner. The aggrieved party is remedy under Section 482 Cr.P.C. The petitioner in these circumstances has filed the present petition.

4. I have heard the learned counsel for the parties. Mr. R.K.Gautam, Senior Advocate, on behalf of the petitioner has submitted that the learned Sub Divisional Judicial Magistrate has virtually accepted the plea of the petitioner that he has been removed as Director of the Company on 30.9.1999, but the learned Magistrate has shown his inability to give any relief to the petitioner on the ground that he has no jurisdiction to drop the proceedings against the petitioner. It has been submitted that even the complainant has not specifically denied that petitioner has not been removed as Director of the Company on 30.9.1999. The complainant has taken the technical plea that the documents placed on record are not authenticated documents. It has been submitted that in Criminal Misc. No. M.40170 of 2007 decided on 31.3.2008 in a similar case the Punjab and Haryana High Court has accepted the plea of the petitioner and has held that the petitioner ceased to be the Director of the Company on 30.9.1999.

5. The petitioner has placed on record Form No. 32 under the Companies Act, 1956 indicating that the petitioner was removed as Director of proforma respondent No.2 Company on 30.9.1999. There is nothing on record that after 30.9.1999 the petitioner was again inducted as Director of proforma respondent No.2-Company. The perusal of complaint further indicates that even as alleged Director of proforma respondent No.2-Company, no specific role has been pleaded with respect to the petitioner. The allegations in this regard are general. In Mrs. Anita Malhotra vs. Apparel Export Promotion Council & Anr. 2011 (3) S.L.J.(SC) 1561 it has been held that Form No. 32 can be considered in proceeding under Section 482 Cr.P.C. It has also been held that general allegations are not sufficient to proceed against the Director.

6. The Section 141(1) of the Act provides that if the person committing an offence under Section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. In the present case, it has been established that the petitioner was removed as Director of proforma respondent No.2 on 30.9.1999, the cheque in question is dated 23.12.2002. In these circumstances, there is no question that on 23.12.2002 the petitioner was in charge of and was responsible to the Company for the conduct of the business of the Company.

7. Mr. J.L.Bhardwaj, learned counsel for respondent No.1

has relied N.Rangachari vs. Bharat Sanchar Nigam Limited AIR 2007 SC 1682 and has submitted that Supreme Court has declined to interfere when the High Court refused to exercise jurisdiction under Section 482 Cr.P.C. for quashing complaint. In N.Rangachari (supra) the Supreme Court has held that it is clear that allegations in the complaint are that at the time at which the two dishonoured cheques were issued by the Company, the appellant and another were the Directors of the Company and were incharge of the affairs of the Company. In the present case there is nothing on record that petitioner was Director of proforma respondent No.2 Company after 30.9.1999.

On the contrary as per judgment dated 31.3.2008 of the Punjab and Haryana High Court the petitioner ceased to be the Director of the Company on 30.9.1999. In these circumstances N.Rangachari (supra) is not applicable in the present case.

8. It has been established that on 23.12.2002 the petitioner was not a Director of the proforma respondent No.2-Company and, therefore, the complaint under Section 138 of the Act against the petitioner is not maintainable. The Criminal Complaint No. 53/3 of 2003 is quashed only against the petitioner.

December 30, 2011 (GR)

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( Kuldip Singh ), Judge.