Ani Industries Llc (Usa) v. M/S.Nirmala & Co
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.12.2018
CORAM:
THE HONOURABLE MR. JUSTICE B. PUGALENDHI Crl.O.P.Nos.4096 to 4100 of 2011 and M.P.Nos.1 (5) of 2011 Ani Industries LLC (USA), Rep. By its Director, Naresh Mangaram Mahtani New York .. Petitioner in Crl OP No.4096/2011/ (1st Accused) Naresh Mangaram Mahtani Director : ANI Chennai Exports Pvt Ltd., New York ..Petitioner in Crl OP No.4097/2011/ 2nd Accused Sulochanan Naresh Mahtani Director : ANI Chennai Exports Pvt Ltd., Director : Ani Industries LLC (USA) New York
...Petitioner in Crl OP No.4098/2011/
3rd Accused Ritesh Naresh Mahtani Director : ANI Chennai Exports Pvt Ltd., Director : Ani Industries LLC (USA) New York
...Petitioner in Crl OP No.4099/2011/
4th Accused Navin Naresh Mahtani Director : ANI Chennai Exports Pvt Ltd., Director : Ani Industries LLC (USA) New York
...Petitioner in Crl OP No.4100/2011/
5th Accused Vs.
M/s.Nirmala & Co., Rep. By its Partner, A.Selvam ... Respondent/Complainant
Prayer: These Criminal Original Petitions filed under Section 482 of Cr.P.C., to call for the records in C.C.No.361 of 2008 on the file of the Judicial Magistrate No.V, Salem and quash the same.
For Petitioner : Mr.V.P. Raman For Respondent : Mr.K. Selvaraj COMMON ORDER These Criminal Original Petitions are filed by the respective petitioners to quash the proceedings pending against them in C.C.No.361 of 2008 on the file of the very same learned Magistrate. The said proceedings came to be instituted at the instance of the respondent / complainant for the commission of offence under Section 138 r/w 141 of the Negotiable Instruments Act.
2. Since the issue involved in all the cases are one and the same and the grounds raised thereto are also the same, all the petitions are taken up together and are disposed of by way of this common order. For the sake of convenience and clarity, the parties are referred to as per their rank before the trial Court.
3. The case of the complainant is that there was a business transaction between the complainant and the accused, in terms of which, the complainant supplied materials as per the purchase order to the accused, on credit basis. The first accused is a company and the rest of the accused are its Directors. In discharge of the liability, several cheques were issued to the complainant and when they were presented for collection, all of them got dishonored due to insufficient funds. The respondent / complainant issued statutory notices, followed by which, the present complaint under Section 138 of the Negotiable Instruments Act came to be lodged.
4. Heard the learned Counsel appearing for the respective parties and perused the documents placed on record.
5. In all these petitions, the petitioners have raised a similar ground that admittedly, the cheques in question were issued by the first accused, namely, M/s.Ani Industries LLC (USA), which is a limited liability company, having its registered office at USA and the cheques were also drawn at USA. Therefore, the very initiation of the proceedings before the learned Judicial Magistrate No.V, Salem, suffers from lack of jurisdiction, as such, the learned Counsel prays for quashing the impugned proceedings.
6. In addition to the same, accused nos.2 to 5 have raised another ground that they are not the signatories to the Cheques in question and moreover, there are no averments attributing any specific role for them in the affairs of the first accused company, as such, the impugned proceedings is liable to be quashed.
7. But, on a perusal of the complaint, it is seen that specific averments have been made as against accused nos.2 to 5 that they are the Directors and they are actively involved in the day-to-day affairs of the company. When there are specific averments available regarding Directorship, it involves adjudication of disputed question of facts, which needs evidence and therefore, on this ground, the impugned proceedings cannot be quashed.
8. Insofar as the first ground regarding jurisdiction is concerned, though the Cheques were issued by a company at USA, they were presented for collection before the Federal Bank, Salem, where they were dishonored. Since a draft cause of action has arose at Salem, this ground is also liable to be rejected.
9. At this juncture, the learned Counsel for the petitioners / accused sought indulgence of this Court to dispense with the personal appearance of accused nos.2 & 3, taking into account of their age and medical ailments. In view of the same, the personal appearance of accused nos.2 & 3 alone is dispensed with, provided they file an affidavit before the learned Judicial Magistrate No.V, Salem, undertaking that they will appear before the trial Court as and when it is specifically required. Considering the age of the proceedings, the learned Judicial Magistrate No.V, Salem, is directed to proceed with the trial and dispose of the same within a period of four months from the date of receipt of a copy of this order.
10. With the above observations and directions, these criminal original petitions are disposed of. Consequently, connected miscellaneous petitions are closed. Sd/- Assistant Registrar(CS-III) //True copy// Sub Assistant Registrar msm/gk
To 1.The Judicial Magistrate No.V, Salem.
2. -do- Through'The Chief Judicial Magistrate, Salem.
Crl.O.P.Nos.4096 to 4100 of 2011 SR(CO) GMY(20/09/2019)