Girishchandra Ugresan Sahoo And ANR v. The State Of Maharashtra And ANR

1 11.3613.15 wp

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE SIDE JURISDICTION CRIMINAL WRIT PETITION NO. 3613 OF 2015 Girishchandra Ugresan Sahoo and another .....Petitioners V/s.

The State of Maharashtra and another ....Respondents WITH CRIMINAL WRIT PETITION NO. 3614 OF 2015 WITH CRIMINAL WRIT PETITION NO. 3615 OF 2015 WITH CRIMINAL WRIT PETITION NO. 3616 OF 2015 WITH CRIMINAL WRIT PETITION NO. 3617 OF 2015 WITH CRIMINAL WRIT PETITION NO. 3618 OF 2015 Shantanu Narayan Rooj and another ....Petitioners V/s.

The State of Maharashtra and another ....Respondents Mr. Prasad Das Advocate for Petitioner.

Mr. M. G. Shukla Advocate for Respondent no. 2 Mrs. A. A. Mane APP for the State.

CORAM : RAVINDRA V. GHUGE, J.

DATED : JULY 15, 2016.

PC :

1) Rule. Rule made returnable forthwith and heard finally by the consent of the parties.

2 11.3613.15 wp 2) These petitions have been filed by the Petitioners who are accused nos. 5 & 8 in all the proceedings before the Court below. 3) The contention of the Petitioners is that they are facing trial for an offence punishable under section 138 of the Negotiable Instruments Act 1881 r/w section 141 of the Act.

4) It is further submitted that these petitions are with regard to the proceedings in Criminal Complaint No. 15/SS/2014 pending before Addl. Chief Metropolitan Magistrate, 58th Court at Bandra, Case No. 16/SS/2014 pending before Addl. Chief Metropolitan Magistrate, 58th Court at Bandra, Criminal Complaint No. 29/SS/2014 pending before the Learned Metropolitan Magistrate's 28th Court at Esplanade, Case No. 355/SS/2014 pending before the Learned Metropolitan Magistrate 58th Court at Bandra, case No. 356/SS/2014 pending before the Learned Metropolitan Magistrate 58th Court at Bandra and case No. 442/SS/2014 pending before the Learned Metropolitan Magistrate 58th Court at Bandra. 5) It is further submitted that on identical set of facts and in between the identical litigating sides, this Court, in Criminal Writ Petition No. 2201 of 2014 along with connected matters, has dealt with the grievance of these very

3 11.3613.15 wp petitioners who had prayed for discharge from the proceedings before the trial Court.

6) The copy of the Judgment of this Court (Coram : M. L. Tahaliyani, J.) dated 24/04/2015 delivered in the said matters in respect of the same directors, is tendered across the Bar and is marked as Exhibit 'X' for identification.

7) It is therefore submitted that these petitions will have to be allowed in terms of prayer clause 'b' and thereby the pending proceedings in connection with these petitioners will have to be quashed. 8) The learned Advocate for Respondent no. 2 in all these matters has strenuously opposed these petitions. The contention is that because this Court has passed its earlier order dated 24/04/2015, would not therefore mean that an identical order needs to be passed.

9) It is submitted that specific averments have been made against these petitioners in paragraph nos. 3, 4, 5 & 6 and hence, relief granted by this court to the Petitioners in the group of 82 petitions covered by the Judgment dated 24/04/2015, ought not be granted to these petitioners. The learned Advocate for Respondent no.2 therefore prays that all these petitions be dismissed with

4 11.3613.15 wp costs.

10) I have considered the submissions of the learned Advocate for the Petitioners and the contesting 2nd Respondent in all these matters. I have gone through the pleadings in the original complaint in paragraph nos. 3, 4, 5 & 6 placed on record.

11) There is no dispute that it is mentioned in these pleadings that accused no. 5 is the finance controller and accused no. 8 is the whole time director of accused no. 1 Company. There is also no dispute that in each of these paragraphs, the original complainant has mentioned that accused nos. 2 to 8 are guilty of the offences. The role of accused nos. 2 to 8 are said to have been narrated in these paragraphs.

12) It would be apposite to reproduce paragraph nos. 4 to 7 of the Judgment dated 24/04/2015 hereunder:

"4 Though the Respondents (Original Complainants) are different, the petitioners in all the petitions are the same. There are two petitioners/applicants who are Directors and Finance Controller respectively of Accused No.1 Glodyne Technoserve Limited having its office at Bandra Kurla Complex, Bandra (E), Mumbai400 051. Loan was obtained through various bills of exchange from Sona Enterprisesthe complainant for the Glodyne Technoserve Limited. Few

5 11.3613.15 wp cheques were issued in respect of each bill of exchange for repayment of the loan obtained by Accused no.1 from Respondent No.2 (complainant). The cheques issued were dishonoured by the bankers of Accused No.1. The Accused No.1 Glodyne Technoserve Limited and other accused were served with the statutory notice. The payment did not come. After expiry of the statutory period, Respondent No. 2 (Complainant Sona Enterprises) filed one complaint each for each dishonoured cheque. The petitioners/applicants are made accused in all the complaints.

5 The petitioners claim that they were not incharge of the day to day business of the company/accused no.1 and that they were not responsible for the conduct of the daytoday business of the company. Both of them had resigned from the Company/Accused No.1 prior to the date of issuance of the cheques in question. 6 As far as the resignation part is concerned, it is disputed by the learned counsel Mr.Shukla on behalf of Respondent no.2. Learned counsel Mr. Das has submitted that even if resignation part is not taken into consideration for the time being, the allegations made in paragraph nos. 3,4,5 and 6 of the complaint are not sufficient to describe the specific role of the petitioners/ applicants at the time of commission of the alleged offence. The learned counsel Mr. Shukla has brought to my notice that the role of the applicants has been described in the complaint in as much as it has been stated that the applicants were present when the loan was extended and that they had assured

6 11.3613.15 wp repayment within time. No doubt these averments are made in the complaints but these averments appear to be vague and bald allegations. There is no mention of place, time and date of presence of the applicants when they had assured for repayment. Admittedly the cheques were signed by the two other Directors and bills of exchange were also signed by the other Directors. There is no specific role assigned to the Petitioners/applicants in any of the complaints. Hence, the proceedings pending against the petitioners/applicants need to be quashed.

7 The proceedings pending against the petitioners/applicants vide criminal cases mentioned in column 3 of the table below, pending in the courts mentioned in column 4 of the table below shall stand quashed. Sr.No Criminal Writ Petition No.

Complaint Case No.

Trail Court Name of Complainant 2201/2014 116/SS/2014 28th Court at Esplanade Yogesh Tulsidas Shah (HUF) 1739/2014 235/SS/2014 28th Court at Esplanade Abdullabhai Fidaalli & Co.

1670/2014 2029/SS/2013 58th Court at Bandra Sona Enterprises 1669/2014 1961/SS/2013 58th Court at Bandra Vraksham's Varkha 1668/2014 1962/SS/2013 58th Court at Bandra Sona Enterprises 1667/2014 2031/SS/2013 58th Court at Bandra Vraksham's Varkha 1666/2014 1960/SS/2013 58th Court at Bandra Vraksham's Varkha

7 11.3613.15 wp 1665/2014 2030/SS/2013 58th Court at Bandra Vraksham's Varkha 397/2014 1535/SS/2013 28th Court at Esplanade Mustan T Kagalwala 396/2014 1207/SS/2013 28th Court at Esplanade Mustan T Kagalwala 395/2014 1515/ss/2013 28th Court at Esplanade Yogesh Tulsidas Shah 394/2014 1565/SS/2013 28th Court at Esplanade Ashok Sah (H.U.

F) 393/2014 1513/SS/2013 28th Court at Esplanade Yogesh Tulsidas Shah 392/2014 1181/SS/2013 28th Court at Esplanade Bipin Tulsidas Shah 390/2014 1203/SS/2013 28th Court at Esplanade Yogesh Tulsidas Shah 389/2014 1532/ss/2013 28th Court at Esplanade Yogesh Tulsidas Shah 388/2014 1418/ss/2013 7th Court at Bhiwada, Dadar Kamlesh Lamba 387/2014 1179/SS/2013 28th Court at Esplanade Ashok J Thawani 386/2014 1417/ss/2013 7th Court at Bhiwada, Dadar Kamlesh Lamba 385/2014 1204/SS/2013 28th Court at Esplanade Bipin T. Shah 384/2014 2004/SS/2013 28th Court at Esplanade Sona Enterprises 383/2014 1180/ss/2013 28th Court at Esplanade Nayan T.

8 11.3613.15 wp 380/2014 1962/SS/2013 58th Court at Bandra Sona Enterprises 379/2014 2031/SS/2013 58th Court at Bandra Vraksham's Varkha 378/2014 1960/SS/2013 58th Court at Bandra Vraksham's Varkha 2215/2014 257/SS/2014 28th Court at Esplanade Mustan T Kagalwala 2214/2014 234/SS/2014 28th Court at Esplanade Anjana Bipin Shah 2213/2014 233/SS/2014 28th Court at Esplanade Anjana Bipin Shah 2212/2014 232/SS/2014 28th Court at Esplanade Anjana Bipin Shah 2211/2014 99/SS/2014 28th Court at Esplanade Yogesh Tulsidas Shah (HUF) 2210/2014 34/SS/2014 28th Court at Esplanade Yogesh Tulsidas Shah (HUF) 2209/2014 33/SS/2014 28th Court at Esplanade Ashok Sah (H.U.

F) 2208/2014 32/SS/2014 28th Court at Esplanade Harsh Yogesh Shah 2207/2014 31/SS/2014 28th Court at Esplanade Mustan T Kagalwala 2206/2014 30/SS/2014 28th Court at Esplanade Bipin T Shah HUF 2205/2014 120/SS/2014 28th Court at Esplanade Nayan T. Shah HUF 2204/2014 119/SS/2014 28th Court at Esplanade Nayan T.

9 11.3613.15 wp 3741/2014 464/SS/2013 69th Court at Mazgaon Ramchand Atrmaram Nagpal 3742/2014 450/SS/2013 69th Court at Mazgaon Dilipkumar Atrmaram Nagpal 3743/2014 443/SS/2013 69th Court at Mazgaon Dilipkumar Atrmaram Nagpal 3744/2014 453/SS/2013 69th Court at Mazgaon Suresh Atrmaram Nagpal 3745/2014 437/SS/2013 69th Court at Mazgaon Suresh Atrmaram Nagpal 3746/2014 451/SS/2013 69th Court at Mazgaon Suresh Atrmaram Nagpal 3734/2014 452/SS/2013 69th Court at Mazgaon Suresh Atrmaram Nagpal 3735/2014 438/SS/2013 69th Court at Mazgaon Suresh Atrmaram Nagpal 3736/2014 463/SS/2013 69th Court at Mazgaon Suresh Atrmaram Nagpal 3737/2014 465/SS/2013 69th Court at Mazgaon Dilipkumar Atrmaram Nagpal 3738/2014 442/SS/2013 69th Court at Mazgaon Dilipkumar Atrmaram Nagpal 3739/2014 455/SS/2013 69th Court at Mazgaon Ramchand Atrmaram Nagpal 3740/2014 454/SS/2013 69th Court at Mazgaon Ramchand Atrmaram Nagpal 4791/2014 3287/SS/2014 70th Court at Mazgaon Atrmaram Ramchand Co.

4792/2014 3288/SS/2014 70th Court at Mazgaon Atrmaram Ramchand Co.

4793/2014 3291/SS/2014 70th Court at Mazgaon Atrmaram Broking Co. Pvt Ltd

10 11.3613.15 wp 4794/2014 3286/SS/2014 70th Court at Mazgaon Atrmaram Ramchand Co.

4795/2014 3285/SS/2014 70th Court at Mazgaon Atrmaram Ramchand Co.

4796/2014 3284/SS/2014 70th Court at Mazgaon Atrmaram Ramchand Co.

4797/2014 697/SS/2014 70th Court at Mazgaon Atrmaram Broking Co. Pvt Ltd 4798/2014 3283/SS/2014 70th Court at Mazgaon Atrmaram Ramchand Co.

4799/2014 3292/SS/2014 70th Court at Mazgaon Atrmaram Broking Co. Pvt Ltd 4800/2014 3293/SS/2014 70th Court at Mazgaon Atrmaram Broking Co. Pvt Ltd 4801/2014 3294/SS/2014 70th Court at Mazgaon Atrmaram & Sons 4802/2014 3295/SS/2014 70th Court at Mazgaon Atrmaram & Sons 4803/2014 3296/SS/2014 70th Court at Mazgaon Atrmaram & Sons 4804/2014 3297/SS/2014 70th Court at Mazgaon Atrmaram & Sons 724/2015 108/SS/2014 58th Court at Bandra Kavita Berry 725/2015 109/SS/2014 58th Court at Bandra Prem B Jagasia 726/2015 110/SS/2014 58th Court at Bandra Deepika Samant 727/2015 111/SS/2014 58th Court at Bandra Deepika Samant 728/2015 203/SS/2014 58th Court at Bandra Deepika Samant

11 11.3613.15 wp 729/2015 204/SS/2014 58th Court at Bandra Golden Gate Bridge 730/2015 205/SS/2014 58th Court at Bandra Om Investments 731/2015 330/SS/2014 58th Court at Bandra Kavita Sanjeev Berry 732/2015 331/SS/2014 58th Court at Bandra Kamlesh Lamba 733/2015 332/SS/2014 58th Court at Bandra Pranav Bhatt 720/2015 104/SS/2014 58th Court at Bandra Vraksham's Varkha 721/2015 105/SS/2014 58th Court at Bandra Vraksham's Varkha 722/2015 106/SS/2014 58th Court at Bandra Vraksham's Varkha 723/2015 107/SS/2014 58th Court at Bandra Dutch Dividends 13) To a specific query posed by the Court, both the litigating sides submit that beneficiaries of Judgment dated 24/04/2015 are the same persons in these cases and they are accused nos. 5 & 8 in the proceedings before the learned Magistrate.

There is no dispute that these petitioners in identical set of facts are the beneficiaries of the Judgment of this Court dated 24/04/2015. 14) In the light of the above, I do not find any such circumstances which would convince me to take a view different from the view taken by this Court vide its Judgment dated 24/04/2015 Exhibit 'X'.

12 11.3613.15 wp 15) As such, these petitions are allowed in following terms:- a) The impugned orders dated 06/03/2014 in case nos. 15/SS/2014 and 16/SS/2014, dated 15/03/2014 in case no. 29/SS/2014, dated 21/05/2014 in case nos. 355/SS/2014 and 356/SS/2014 and dated 25/04/2014 in case no. 442/SS/2014 are hereby quashed and set aside to the extent of these Petitioners.

b) The above proceedings in the said criminal cases are quashed to the extent of the Petitioners.

c) Bail bonds of these petitioners, if any, stand cancelled. 16) Rule is made absolute in the above terms.

17) No costs.

(RAVINDRA V. GHUGE, J.)