CRMMO/87/2007 of VIKAS TOURANI Vs MS HIM TEKNO FORGE LTD. on 30 December 2011

1. Mr. Vikas Tourani son of Shri Ramesh Chand Tourani, 4, Palsikar Colony, Indore, M.P.Palsikar Colony, Indore, M.P.

2. Mrs. Megha Tourani wife of Mr. Lalit Tourani, 4, Palsikar Colony Indore,M.P.Colony Indore,M.P.

…Petitioners/accused.

Versus

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

3Mr. Arjun T.Kukareja, 17/18, Gulmohar Extension, Indore, M.P. 452001.452001.

4Mr. Ramesh Chand Tourani 72-B, Prem Nagar, Indore (M.P.) 452001.452001.

5Mr. Prem Kalwani, 92, Sarvodaya Nagar, Indore-452001.Proforma respondents No. 2 to 5 deleted vide order dated 18.05.2009.Proforma respondents No. 2 to 5 deleted vide order dated 18.05.2009.

… Proforma Respondents/ accused.

Petition under Section 482 of the Code of Criminal Procedure for quashing the complaint being Complaint No. 35/3 of 2003 pending the Court of learned Sub Divisional Judicial Magistrate, Nalagarh, District Solan as well as further proceedings including summoning orders as well as order dated 30.07.2005 whereby the application moved by the petitioners for discharge has been dismissed.

Coram:

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

Whether approved for reporting ?1[1] YesFor the petitioners :Mr. Ramakant Sharma, Advocate.For the respondents :Mr. J.L.Bhardwaj, Advocate, for respondent No.1.

Kuldip Singh, J(Oral).

This petition has been filed under Section 482 Cr.P.C. for quashing Criminal Complaint No. 35/3 of 2003 pending in the Court of learned Sub Divisional Judicial Magistrate, Nalagarh, summoning order and order dated 30.07.2005.

2. The facts, in brief, are that respondent No.1 has filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘Act’) against proforma respondent No.2-Company and other Directors of the said Company including the petitioners on the allegations that `5 lacs cheque dated 08.07.2002 was issued by the accused which on presentation was bounced. The notice was given to the accused, but despite notice the amountwas not paid, hence, the complaint was filed. The learned Sub Divisional Judicial Magistrate issued process against the accused under Section 138 of the Act.

3. The petitioners filed an application before the learned Magistrate for dropping proceedings against them on the ground that they were not Directors of the Company on 08.07.2002 and, therefore, the proceedings against them may be dropped. The learned Sub Divisional Judicial Magistrate dismissed the application on 30.07.2005 on the ground that he has no jurisdiction to drop the proceedings. The aggrieved party has the remedy under Section 482 Cr.P.C. The petitioners have, thus, filed the present petition.

4. I have heard learned counsel for the parties and have also gone through the record. It has been submitted by learned counsel for the petitioners that Vikas Tourani was appointed as Additional Director of proforma respondent No.2-Company on

28.03.2000 and such appointment remains valid till next annual general meeting of the Company under Section 260 of the Companies Act. It has been submitted that in the annual general meeting of the Company the initial appointment of petitioner No.1 as Additional Director of the Company was neither extended nor he was appointed as Additional Director or as Director of the proforma respondent No.2-Company. It has also been submitted that petitioner No. 2 resigned as Director of proforma respondent No.2-Company on 23.02.2001. The forms No. 32 showing initial appointment of petitioner No.1 as Additional Director and resignation of petitioner No.2 as Director of the Company have been placed on record.

5. The learned counsel for the petitioners has relied Mrs. Anita Malhotra Versus Apparel Export Promotion Council & Anr. 2011 (3) S.L.J. (S.C.) 1561 and has submitted that form No. 32 can be examined under Section 482 Cr.P.C while considering the quashing proceedings. The learned counsel for the respondent No.1 has submitted that the Court below has rejected the application for dropping proceedings filed by the petitioners. The documents filed by the petitioners are not authenticated. The proceedings against the petitioners cannot be dropped at this stage. The petitioners are at liberty to prove their defence in the Court below. The prayer has been made for dismissing the petition.

6. The cheque was allegedly issued on 08.07.2002. The form No. 32 regarding petitioner No.1 which has been placed on record is to the effect that he was appointed as Additional Director of proforma respondent No.2-Company on 28.03.2000. The Section 260 of the Companies Act provides that such appointment remains valid till next general meeting. It has been submitted that in the next general meeting held on 29.09.2001, the petitioner No.1 was not further appointed as Additional Director or Director of proforma respondent No.2-Company. The form No. 32 pertaining to petitioner No.2 also indicates that she resigned as Director of proforma respondent No.2-Company on 23.02.2001. On the date of issuance of cheque dated 08.07.2002, the petitioners were not Directors of proforma respondent No.2-Company.

7. 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, the petitioners No.1 and 2 were not Directors of the Company on 08.07.2002, therefore, it cannot be said that petitioners were responsible for the conduct of the business of the Company on 08.07.2002 when cheque was issued.

8. In the complaint there are general allegations against the petitioners without specifying the role given to them by the Company. In Anita Malhotra (supra), the Supreme Court has held that general allegations are not sufficient to proceed against the Director. In the present case, the petitioners have not been found to be the Directors of the Company when the cheque in question was issued. In these circumstances, the learned Magistrate has erred in summoning the petitioners. Accordingly, Criminal Complaint No. 35/3 of 2003 pending in the Court of learned Sub Divisional Judicial Magistrate, Nalagarh, is quashed against the petitioners only. The learned counsel for respondent No.1 has stated that the complaint was filed in the year 2003, he has submitted for early disposal of complaint. The trial Court is directed to dispose of the complaint expeditiously preferably within six months. The pending application is also disposed of in view of disposal of the main petition.

December 30, 2011. (krt)

( Kuldip Singh), Judge.