Bombay High Court
Kusheshwar Bambhola Jha vs State Of Maharashtra on 11 December, 2023
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.1335 OF 2023
Kusheshwar Jha & Anr. .... Applicants
versus
The State of Maharashtra & Anr. .... Respondents
.......
• Ms. Neeta Solanki i/b. Unison Legal, Advocate for Applicants.
• Mr. Arfan Sait, APP for the State/Respondent No.1.
• Mr. Mahesh J. Devani, Advocate for Respondent No.2.
CORAM : SARANG V. KOTWAL, J.
DATE : 11th DECEMBER, 2023
P.C. :
1. The Applicants are the original accused Nos.3 and 4 in
C.C. No.4953/SS/2019 before the Metropolitan Magistrate, 63 rd
Court, Andheri, Mumbai.
2. Heard Ms. Neeta Solanki, learned counsel for the
Applicants, Mr. Mahesh J. Devani, learned counsel for
Respondent No.2 and Mr. Arfan Sait, learned APP for the State.
Nesarikar
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3. Learned counsel Mr. Mahesh J. Devani states that he
has instructions to appear for Respondent No.2 i.e. the original
complainant. He undertakes to file his Vakilpatra within a period
of two weeks from today.
4. The complainant states that the accused No.1 was a
limited company by the name 'Suryajyoti Spinning Mills Ltd.'. It
is a limited company incorporated under the Companies Act,
1956. The accused Nos.2 to 4 were the Directors of the accused
No.1. They were responsible for the conduct of day to day affairs
and the business of the accused No.1. They were incharge and
were in absolute control of the management of the business of
accused No.1. The accused No.2 was signatory of the cheque
issued by the accused No.1 in favour of the complainant
company.
5. The complainant had sold, supplied and delivered their
goods to the accused No.1 company from time to time and there
was amount of Rs.1,99,01,101/- payable to the complainant.
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The complainant invoked the provisions of The Insolvency and
Bankruptcy Code, 2016. They filed the Company Petition before
the National Company Law Tribunal, Hyderabad. Thereafter, as
per mutual understanding and consent terms, the accused
company agreed to pay sum of Rs.2,10,00,000/- in eight
installments as per the consent terms dated 28/06/2019. In part
payment of that responsibility, a cheque dated 20/07/2019 for
Rs.30,00,000/- was issued by the accused/company drawn on
State Bank of India, Paradise Branch, Secunderabad. The cheque
was dishonoured for insufficiency of funds. The complainant
sent statutory notice to the accused. The packet sent to the
Applicant No.2/accused No.4 was returned by the postal
authorities. The complaint came to be filed after that.
6. The learned Magistrate issued process vide the order
dated 05/01/2023 u/s 138 of the Negotiable Instruments Act
against all the accused Nos.1 to 4 including the present
Applicants. The said order is under challenge.
7. Learned counsel for the Applicants invited my attention
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to the record at the Company in the form of DIR-11. The record
shows that the Applicant No.1 was appointed on 03/08/2016
under the designation of Additional Director and his category
was Independent Non-Executive Director. He had resigned on
27/08/2019.
8. The Applicant No.2 i.e. the accused No.4 was also
described as a Director. Her category was Independent Non-
Executive Director. She was appointed on 21/11/2016.
9. Learned counsel for the Applicants submitted that the
very fact that the Applicants were described as the Independent
Non-Executive Directors, would indicate that they were not
incharge of the company and were not responsible for day to
day affairs of the company.
10. In support of her contention, learned counsel for the
Applicants relied on the judgment of Hon'ble Supreme Court in
the case of Sunita Palita & Ors. Vs. Panchami Stone Quarry, as
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reported in (2022) 10 Supreme Court Cases 152 , as well as
judgment of Single Judge Bench of this Court (Coram : Amit
Borkar, J.) passed on 22/11/2022 in Criminal Writ Petition
No.2017 of 2017.
11. Considering these submissions, it is necessary to hear
the other side. Learned counsel appearing for the Respondent
No.2 seeks permission to file affidavit-in-reply. Therefore, today I
am adjourning the matter. Learned counsel for the Applicants
has made out the case for grant of ad-interim relief.
12. Hence, the following order :
ORDER
(i) Issue notice to the Respondent No.2 returnable
on 12/02/2024.
(ii) Learned counsel Mr. Mahesh J. Devani waives
service of notice of the Respondent No.2.
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(iii) The Respondent No.2 is at liberty to file
affidavit-in-reply with copy to the other side.
(iv) Till the next date, there shall be ad-interim relief
in terms of prayer clause (c) only in respect of
the present Applicants.
(v) Stand over to 12/02/2024.
(SARANG V. KOTWAL, J.)
