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Judgment
D.G. Deshpande, J.—Heard Mr. Marwadi for the petitioners, Mr. Desai for respondent No. 1 and learned APP, Mr. Galeria, for the State.
This petition is filed for quashing the proceedings initiated against the petitioners u/s 138 of the Negotiable Instruments Act, 1881. It was contended by counsel for the petitioners, Mr. Marwadi, that the petitioners, who were original accused Nos. 4, 6, 8 and 11 in the original complaint, had resigned before or at the time when the cheque was issued, and, therefore, they were not liable for prosecution. However, counsel for respondent No. 1, Mr. Desai, has strongly contended that as the fact of resignation of these directors was seriously disputed by the complainant and unless the accused proved in their defence before the trial court that the directors/petitioners had resigned and that the resignation was as per the provisions of the Companies Act and as per the articles of association and memorandum of association of the company, that the resignation was accepted by other directors or by the company and that it was duly recorded by the Registrar of Companies, the submission of counsel for the petitioners cannot be taken into consideration and, therefore, the petition is liable to be dismissed,
I find considerable force in the submissions made by counsel for respondent No. 1 because if the respondent-complainant is not accepting the genuineness of the document (admittedly the documents filed with the petition in their support by the accused are the xerox copies not even signed as true copies or certified copies), then the accused are required to prove it before the trial court by adducing evidence in that regard, and, therefore, the objection raised by the respondent''s advocate is upheld at this stage.
However, so far as petitioner No. 3 is concerned, respondent No. 1 did not seriously dispute that petitioner No. 3 had resigned as director even before issuance of cheque, hence the petition is required to be allowed in respect of petitioner No. 3. For all the reasons I pass the following order :
ORDER
Petition is partly allowed.
Rule partly made absolute.
Criminal prosecution against petitioner No. 3 in Case No. 258-S of 1998 pending before the Additional Chief Metropolitan Magistrate, Girgaum, Mumbai, is quashed. Liberty to other petitioners to apply before the concerned metropolitan magistrate for their discharge.