S.B. And T. International Ltd. vs State Of Maharashtra And Anr.
2005 Latest Caselaw 1402 Bom

ORDER

A.M. Khanwilkar, J.

1. Heard counsel for the parties.

2. Rule. By consent, returnable forthwith. Shri. Shinde, A.P.P. for respondent No. 1 and Shri. Kantawala for respondent No. 2 waive service. As a short question is involved, by consent the petition is taken for final hearing.

3. This petition questions the correctness of the decision of the 1st Adhoc Additional Sessions Judge, Palghar dated 1st August, 2005 in Crim. Rev. application No. 41 of 2005. By the said order the Sessions Judge has allowed the revision application thereby setting aside the order passed by J.M.F.C. Vasai dated 7th August, 2002 issuing process under Section 138 of the Negotiable Instruments Act against respondent No. 2 in CC. No. 3582 of 2002. The basis on which the Sessions Judge has allowed the revision application in favour of respondent No. 2 is that respondent No. 2 had produced form No. 32 to substantiate the plea that at the relevant time respondent No. 2 was not the director of the accused company. No other aspect has been considered in the judgment of the Sessions Judge. In my opinion, the petitioner/complaint is justified in contending that the question whether respondent No. 2 continued to be the director in the accused company at the relevant time is a matter for trial. Indeed form No. 32 is a public document but even then the said document will have to be proved in evidence in defence by the accused. That by itself cannot be the basis to hold that no offence is made out against the concerned accused. This aspect has been considered in the decision dated 23rd December 2004 in the case of Vijay Mallya v. State of Maharashtra and Ors. Crim. Application No. 4827 of 2004. Applying the principles stated therein this petition ought to succeed. I am conscious of the fact that the Sessions Court adverted to several other decisions in the impugned judgment but in the above said judgment delivered by me I have considered most of the judgements referred to in the impugned judgment and taken the view that production of form No. 32 by itself is not sufficient. Accordingly, this petition is allowed. The impugned judgment is set aside with the directions to the Trial Court to proceed with the trial in accordance with law uninfluenced by any observations made in the impugned judgment or for that matter in the present order.

4. Counsel for respondent No. 2 submits that atleast personal presence of respondent No. 2 before the trial court may be dispensed with. Counsel for the applicant has no objection to show that indulgence to respondent No. 2. Accordingly respondent No. 2 is exempted from appearing before the Trial Court except for recording of plea and statement under Section 313 as and when required.