Roshni Sheth, Aged 41 Years v. M/S.Bhagwandass Metals Ltd.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.08.2016
CORAM
THE HON'BLE MR.JUSTICE P.N.PRAKASH Crl.O.P. No.15947 of 2016 & Crl.M.P. No.7789 of 2016 Roshni Sheth Former Director Karishmaa Foundations Pvt. Ltd.
residing at C4, Aura One Apartment No.1, I Main Road Shastri nagar, Chennai and Office at Karishmaa Foundations Pvt. Ltd.
No.340/1, South Main Road Kapaleeswarar Nagar Neelangarai Chennai 600 115 Petitioner Vs Bhagwandass Metals Ltd.
represented by its Managing Director Govind Prasad New No.54, Old No.61 Sembudoss Street George Town Chennai 600 001 Respondent Criminal Original Petition filed under Section 482 Cr.P.C., to call for the records in C.C. No.2499 of 2016 pending before the II Metropolitan Magistrate, Egmore, Chennai and quash the same.
For petitioner Mr. Nithyaesh Natraj For respondent Mr. C. Vigneswaran
ORDER
This Criminal Original Petition has been filed to call for the records in C.C. No.2499 of 2016 pending before the II Metropolitan Magistrate, Egmore, Chennai and quash the same. For the sake of convenience, the parties are referred to by their name.
It is the case of Bhagwandass Metals Ltd. (complainant) that Karishmaa Foundations Pvt. Ltd. (A1) had borrowed a sum of Rs.1,23,00,000/- on 20.07.2012 and entered into a lease agreement on 30.11.2013 which was subsequently superseded by a Memorandum of Understanding dated 10.01.2015 under which Karishmaa Foundations Pvt. Ltd. (A1) issued a cheque dated 31.10.2015 for Rs. 1 crore, which, when presented by Bhagwandass Metals Ltd. (complainant), was dishonoured. Bhagwandass Metals Ltd. issued a statutory notice dated 02.02.2016 and followed it up with the present complaint in C.C. No.2499 of 2016 before the II Metropolitan Magistrate Court, Egmore, Chennai, for an offence under Section 138 of the Negotiable Instruments Act, 1881, against Karishmaa Foundations Pvt. Ltd. (A1), Rakesh Premkumar Sheth (A2), Premsai Chundur (A3) and Roshini R. Sheth (A4), challenging which Roshini R. Sheth (A4) is before this Court.
Heard Mr. Nithyaesh Natraj, learned counsel for Roshni Sheth and Mr. C. Vigneswaran, learned counsel for Bhagwandass Metals Ltd.
It is contended by the learned counsel for Roshini Sheth that as on the date of issuance of the cheque in question, i.e., on 31.10.2015, Roshini Sheth was not a Director in Karishmaa Foundations Pvt. Ltd. (A1) and that she had resigned as early as on 11.04.2011 and in support of this contention, he produced Form 32 submitted to the Registrar of Companies, which clearly shows that Roshini Sheth had resigned from the Directorship on 11.04.2011.
Per contra, the learned counsel for Bhagwandass Metals Ltd. (complainant) submitted that Roshini Sheth was part and parcel of the negotiations and therefore, she cannot be absolved of criminal liability.
This Court gave its anxious consideration to the rival contentions.
Roshini Sheth is prosecuted by virtue of Section 141 of the Negotiable Instruments Act on the allegation that she was a Director in Karishmaa Foundations Pvt. Ltd. (A1), whereas, on a reading of the complaint, it is seen that it lacks even the minimum averments that are required for fastening criminal liability under Section 138 of the Negotiable Instruments Act with the aid of Section 141, ibid, inasmuch as the standard averment is that she was a Director of that company and the averment that she was in charge of and was responsible for the affairs of the company is lacking. Even in the complaint, Roshini Sheth is being categorised as a "Former Director" which
clearly indicates that she was not a Director when the cheque in question was issued.
In view of the above, the prosecution against Roshini Sheth in C.C. No.2499 of 2016 is hereby quashed and this Criminal Original Petition is allowed. Connected Crl.M.P. is closed. Sd/- Asst. Registrar.
/true copy/ Sub Asst. Registrar.
cad To The II Metropolitan Magistrate Egmore, Chennai The Public Prosecutor High Court of Madras Chennai 600 104 +1 CC to Mr.Nithyaesh and Vaibhav, Advocate Sr.No.48828 Crl.O.P. No.15947 of 2016 LRS (CO) MD : 15/09/2016