Bombay High Court
Kaushik M Bhatt vs Edelweiss Asset Reconstruction ... on 18 October, 2024
2024:BHC-AS:41753
P.H. Jayani 03 WPST6264.2024.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION (ST.) NO. 6264 OF 2024
Kaushik M. Bhatt
Aged 70 years,
Residing at 17-100, Ellora Park,
Race Course Circle, Vadodara,
Gujarat - 390 023. ..... Petitioner
v/s.
1. Edelweiss Asset Reconstruction Company Limited
Having its Registered Office at
Edelweiss House, Windsor Ln,
Kolivery Village, MMRDA Area,
Kalina, Santacrus (East),
Mumbai - 400098.
2. The State of Maharashtra ..... Respondents
Mr. Yashpal Thakur a/w. Mr. Mukund Pandya for the Petitioner.
Ms. Sonal Sanap i/b. M/s. Apex Law Partners for Respondent No.1.
Mr. C.D. Mali, APP for the State - Respondent No.2.
CORAM : SHYAM C. CHANDAK, J.
RESERVED ON : 07th AUGUST, 2024.
PRONOUNCED ON : 18th OCTOBER, 2024
JUDGMENT :
-
1) Petitioner, arrayed as accused no.3 in Criminal Complaint
No.6988/SS/2016 pending before 33 rd Court of Metropolitan Magistrate,
Ballard Pier, Mumbai has invoked the jurisdiction of this Court under
Article 227 of the Constitution of India and under Section 482 of the
Criminal Procedure Code and seeks for quashing and setting-aside of the
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said complaint under Sections 138 and 141 of the Negotiable Instruments
Act, 1881 (N. I. Act) and the impugned Order passed on dated 17 th March,
2017 thereby the learned Magistrate directed to issue process for the said
offence against all the accused including the Petitioner.
2) Heard Mr. Thakur, learned Counsel for the Petitioner, Ms.
Sanap, learned Counsel for Respondent No.1 and Mr. Mali, learned APP
for the State. Perused the Petition.
3) Rule. Rule made returnable forthwith and with consent of the
parties, taken up for hearing.
4) Facts giving rise to this Petition are that, accused no.1 - M/s.
Kemrock Industries and Exports Ltd. availed Secured Term Loan of Rs.30
Crores from Respondent No.1 formerly known as M/s. L&T Finance
Limited, under a Loan Agreement bearing no.741409 with certain terms
and conditions including a condition to repay the loan within 36 months
along with agreed interest @ 12.50% p.a. Accused no.2, being Managing
Director, executed a 'Deed of Guarantee' in favour of Respondent
No.1/L&T Finance Limited, to ensure repayment of the loan. It is alleged
that, accused Nos.2 to 7 are Directors and accused Nos.8 & 9 are
Authorized Signatories of the accused No.1. They all are responsible for
the day to day affairs, conduct and management of the business of
accused No1. That, the accused No.1 issued a cheque dated 15th June 2014,
for a sum of Rs.10 Crores, towards part payment of the loan. Said cheque
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was deposited for encashment on 30th August 2014, however, it returned
dishonoured for the reason 'Exceeds Arrangements' as per the bank
memo dated 01st September, 2014. Hence, Respondent No.1 addressed
the statutory notice to all the accused on 11th September, 2014. All the
accused received the notice but did not pay the dishonoured cheque
amount. It is alleged that said cheque was issued by accused No.1 with
knowledge and consent of accused Nos.2 to 7 and under signature of
accused Nos.8 and 9, as accused Nos.2 to 7 are involved in day to day
transactions of accused No.1. Thus, all the accused have committed the
alleged offence.
5) The learned Magistrate considered the complaint, verification
statement and the documents enclosed, and held that, there is a prima
facie case against the accused, hence, passed the impugned Order dated
17th March 2017 and directed to issue process against all the accused.
6) Learned Counsel for Petitioner firstly submitted that, as per
the Annual Report of 2012-2013, Petitioner was an Independent Non-
Executive Director of the accused no.1. Secondly he submits that, except
bald, general and vague allegations that, Petitioner was Director of
accused No.1, no specific role has been assigned to the Petitioner to show
that, directly or indirectly Petitioner was involved in the business of
accused. No.1. Even in the verification statement, no role has been
attributed to the Petitioner to indicate that, he was involved in day-to-day
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affairs or conduct of business of the accused no.1.
6.1) Thirdly, he submits that, the dishonoured cheque was issued
on 15th June, 2014, however, the Petitioner had already severed his ties
with the company by his resignation on 01 st April, 2014 and therefore, by
virtue of his designation in the Company and resignation, the Petitioner
cannot be said to have involved in day-to-day affairs and conduct of the
business of accused no.1. To support this submission, learned Counsel
produced a certified copy of Form DIR-12, issued by Registrar of
Companies, and submitted that this document is incontrovertible and
unimpeachable piece of evidence, therefore, it can be relied upon even if
filed by the Petitioner/accused. Fourthly, he submits that, the 'List of
Signatories' of accused no.1, relied upon to support the complaint, was
obtained from the record of Ministry of Company Affairs. However, name
of the Petitioner is not reflecting from the said list. Consequently, the
subject complaint is not maintainable and the impugned Order of issue
process is not sustainable in law qua the Petitioner, therefore, the
complaint as well as the impugned Order be quashed and set-aside.
7) Per contra, Ms. Sanap, learned Counsel for Respondent No.1
submits that, Petitioner has two addresses. The notice demanding the
dishonoured cheque amount was issued and served upon the Petitioner at
both the addresses. Despite receipt of the statutory notice, the Petitioner
did not reply the same. Citing the decision in the case of S.P. Mani and
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Mohan Dairy vs. Dr. Snehalatha Elangovan 1, she submits that, it was
essential for the person to whom statutory demand notice issued under
Section 138 of the Negotiable Instruments Act to give appropriate reply to
the notice. The person concerned is expected to clarify his or her stance.
If the person concerned has some unimpeachable and incontrovertible
material to establish that he or she has no role to play in the affairs of the
company/firm, then such material should be highlighted in the reply to
the notice as a foundation. If any such foundation is laid, the picture
would be more clear before the eyes of the complainant. The complainant
would come to know as to why the person to whom he has issued notice
says that he is not responsible for the dishonour of the cheque. Had the
respondent herein given appropriate reply highlighting whatever he has
sought to highlight before to the complainant, then probably the
complainant would have undertaken further enquiry and would have
tried to find out what was the legal status of the firm on the date of the
commission of the offence and what was the status of the respondent in
the firm. The object of notice before filing of the complaint is not just to
give a chance to the drawer of the cheque to rectify his omission to make
his stance clear so far as his liability under Section 138 of the NI Act is
concerned. Thus, resignation of the Petitioner is seriously disputed.
7.1) She submits that, in the case in hand, all the necessary
1. (2023) 10 SCC 685
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averments were made in the statutory notice and in the complaint. The
complaint is supported by the appropriate verification statement and the
relevant documents which clearly constitute the alleged offence under
Section 138 of the NI Act. Therefore, there is no substance in the Petition
and the same is liable to be dismissed.
8) Before delving into the issue further, it would be apt to look
into the following decisions cited by learned Counsel for Petitioner.
i) Ashoke Mal Bafna Vs. Upper India Steel Mfg. Engg. Co. Ltd. 2.
In this case, the cheques dated 28-12-2004 with validity for a
period of six months were issued while the Appellant was Director
of the Company but during that period the cheques were not
presented for realization at the bank. The Appellant had resigned as
Director w.e.f. 2-1-2006. The fact of his resignation was furnished
by Form 32 to the Registrar of Companies on 24-03-2006.
Thereafter, the Appellant had played no role in the activities of the
default Company. This fact remained substantiated with the
Statement filed by the default Company on 20-02-2006 with the
Registrar of Companies as in an advertisement of the Company
seeking deposits, only the names of three Directors of the Company
were shown as involved in the working of the Company and the
name of Appellant was not therein. Indisputably, the cheques
bounced on 24-08-2006 due to insufficient funds, were neither
issued by the Appellant nor the Appellant was involved in the day to
day affairs of the Company. Therefore the case against said
Appellant was quashed.
2 AIR 2017 SC 2854
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ii) Rajesh Viren Shah Vs. Redington (India) Limited 3. In this case
both the Appellants were directors and resigned on 09-12-2013 and
12-03-2014 respectively. The Form 32 to that effect stood accepted
on 09-12-2013 and 20-03-2014. However, said Appellants were
arrayed as accused in the complaint under Section 138 of N.I. Act
for dishonoured cheques dated 22-03-2014. Veracity of Form No.32
was not disputed by the contesting Respondent nor the act of
resignation simpliciter was questioned. The Appellants had not
played any role in issuance of the cheques. Therefore, it is held that
the Appellants can in no way be responsible for the conduct of
business at the relevant time. Hence were discharged from the
prosecution.
iii) Pooja Ravinder Devidasani vs State Of Maharashtra & Ors 4. In
this case, after resignation of the appellant as a Director, Form 32
under the Companies Act, 1956, was filed on 20th December 2005
with the Registrar of Companies. In the said Form 32, the names of
two Directors, who were newly appointed, were shown with
remarks "appointed as a Director-Operations" and against the
name of the appellant the remark "resigned as a Director" were
shown. The Respondent No.2 was aware of this fact. The trade
finance facility was extended by the Respondent No.2 to the default
company during the period from April-2008 to October-2008. The
Annual Return filed by the Company for the year ending 31 st March
2006, showed that the appellant was no longer a Director of the
Company i.e., "Date of ceasing : 17-12-2005". The Cheques in
question were issued by the Company in the year 2008 i.e. about
two and half years after resignation of the appellant as Director.
3 (2024) 4 SCC 305
4 AIR 2015 SC 675
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This fact itself emphasized that the appellant was not involved in
the affairs of the Company when the Cheques were issued and had
no role either in the conduct of the business of the Company or in
issuing the Cheques. Hence, the process was quashed against her.
iv) Gunmala Sales Pvt. Ltd vs Anu Mehta & Ors5. In this case after
referring various earlier pronouncements, the Hon'ble Supreme
Court summarized the conclusions as under :-
a) Once in a complaint filed under Section 138 read with
Section 141 of the NI Act the basic averment is made that the
Director was in charge of and responsible for the conduct of
the business of the company at the relevant time when the
offence was committed, the Magistrate can issue process
against such Director;
b) If a petition is filed under Section 482 of the Code for
quashing of such a complaint by the Director, the High Court
may, in the facts of a particular case, on an overall reading of
the complaint, refuse to quash the complaint because the
complaint contains the basic averment which is sufficient to
make out a case against the Director.
c) In the facts of a given case, on an overall reading of the
complaint, the High Court may, despite the presence of the
basic averment, quash the complaint because of the absence of
more particulars about role of the Director in the complaint. It
may do so having come across some unimpeachable,
uncontrovertible evidence which is beyond suspicion or doubt
or totally acceptable circumstances which may clearly indicate
that the Director could not have been concerned with the
5 AIR 2015 SC 1072
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issuance of cheques and asking him to stand the trial would be
abuse of the process of the court. Despite the presence of basic
averment, it may come to a conclusion that no case is made
out against the Director. ... In such cases, if the High Court is
convinced that prosecuting such a Director is merely an arm-
twisting tactics, the High Court may quash the proceedings. It
bears repetition to state that to establish such case
unimpeachable, uncontrovertible evidence which is beyond
suspicion or doubt or some totally acceptable circumstances
will have to be brought to the notice of the High Court. Such
cases may be few and far between but the possibility of such a
case being there cannot be ruled out. In the absence of such
evidence or circumstances, complaint cannot be quashed;
d) No restriction can be placed on the High Court's powers
under Section 482 of the Code. The High Court always uses
and must use this power sparingly and with great
circumspection to prevent inter alia the abuse of the process
of the Court. There are no fixed formulae to be followed by the
High Court in this regard and the exercise of this power
depends upon the facts and circumstances of each case. The
High Court at that stage does not conduct a mini trial or
roving inquiry, but, nothing prevents it from taking
unimpeachable evidence or totally acceptable circumstances
into account which may lead it to conclude that no trial is
necessary qua a particular Director.
9) In Pooja (Supra) it is laid down that, "...Non-executive
Director is no doubt a custodian of the governance of the Company but
does not involve in the day-to-day affairs of the running of its business
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and only monitors the executive activity. To fasten vicarious liability
under Section 141 of the Act on a person, at the material time that person
shall have been at the helm of affairs of the Company, one who actively
looks after the day-to-day activities of the Company and particularly
responsible for the conduct of its business. Simply because a person is a
Director of a Company, does not make him liable under the N. I. Act.
Every person connected with the Company will not fall into the ambit of
the provision. Every person connected with the Company will not fall into
the ambit of the provision. Time and again, it has been asserted by this
Court that only those persons who were in charge of and responsible for
the conduct of the business of the Company at the time of commission of
an offence will be liable for criminal action. A Director, who was not in
charge of and was not responsible for the conduct of the business of the
Company at the relevant time, will not be liable for an offence under
Section 141 of the N.I. Act. In National Small Industries Corp.Ltd vs.
Harmeet Singh Paintal & Anr, 2010 (3) SCC 330 this Court observed :
Section 141 is a penal provision creating vicarious liability,
and which, as per settled law, must be strictly construed. It is
therefore, not sufficient to make a bald cursory statement in a
complaint that the Director (arrayed as an accused) is in
charge of and responsible to the company for the conduct of
the business of the company without anything more as to the
role of the Director. But the complaint should spell out as to
how and in what manner Respondent 1 was in charge of or
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was responsible to the accused Company for the conduct of its
business. This is in consonance with strict interpretation of
penal statutes, especially, where such statutes create vicarious
liability.
A company may have a number of Directors and to make
any or all the Directors as accused in a complaint merely on
the basis of a statement that they are in charge of and
responsible for the conduct of the business of the company
without anything more is not a sufficient or adequate
fulfillment of the requirements under Section 141. "
10) Keeping in mind the facts of the reported cases, the decision
rendered therein and the principles enunciated through said decisions, I
have carefully considered the facts and circumstances of the case in hand
in the light rival submissions.
11) Learned Counsel for Petitioner vehemently submitted that, as
per the Annual Report of 2012-2013 of accused No.1, Petitioner was an
Independent Non-Executive Director of accused no.1. Such a Director
does not have pecuniary relationship with the company as he is not a
Promoter of the Company, its holding, subsidiary or associate company.
An Independent Non-Executive Director does not participate in day-to-
day affairs and management of the company. Therefore, the Petitioner
cannot be held responsible for the day to day affairs, conduct and
management of the business of accused No.1.
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11.1) However, the photocopy of Form No.12 and certified copy of
Form No.12 produced on record indicate that, on 1 st April, 2014 the
Petitioner resigned as the Director of accused No.1. Meaning thereby, in
the next Financial Year 2013-2014, Petitioner was a Director of accused
No.1. Yet, Petitioner has not produced any document to show as to when
the Board of Directors of accused No.1 held the meeting, resolved to
appoint him as Director and appointed so. Even if the Annual Report of
the year 2012-2013 mentions that Petitioner was an Independent Non-
Executive Director, the relevant Appointment letter is not produced. That
apart, the 'Non-executive Director' category is not marked in the Form
No.12. Thus, it is not sufficiently cleared by the Petitioner as to whether at
the relevant time he was an Independent Non-Executive Director or the
Director. In fact, looking at the facts of the case and the material on
record, the Petitioner has taken a completely contradictory stance,
therefore, I find it difficult to accept either of the same.
11.2) One of the Forms No.12 is a certified copy of the year 2023.
However, it is necessary to note that, from both the forms it is not
discernible as to exactly when the said form was submitted with the ROC.
There is sufficient material on record which indicates that, not only
accused No.1 company but its directors including Petitioner were served
with the statutory notice thereby demanding the dishonoured cheque
amount. Yet, the Petitioner did not reply that notice and clarified the
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situation in so far as his position in and connection with the accused No.1.
Therefore, it is difficult to rely upon this document without any
supporting material. In fact, since Form No.12 is not carrying the date of
its submission, it is difficult to accept that the Petitioner has resigned
before issuance of the dishonoured cheque. Besides this it is significant to
note that, the subject cheque was issued on 15 th June, 2014 and the
resignation of the Petitioner is allegedly accepted on 15 May, 2014 i.e., in
the close proximity to the issuance of the cheque. This circumstance
makes the fact of resignation doubtful. The delay in filing this Petition has
added to that. No doubt, the list of signatories of accused No.1 does not
mention the name of the Petitioner but this document is of no avail
because it is of the year 2016 and the dishonoured cheque was issued
much prior, i.e., in the year 2014.
11.3) In short, looking at the rival contentions what appears at the
end is, that the Respondent No.1 has discharged its initial burden by way
of the necessary averments. Therefore, even if said averment is denied by
the Petitioner, the burden of proof that at the relevant point of time he
was only an Independent Non-Executive Director or he was not at all the
Director, lies specifically on him. This onus is required to be discharged
by the Petitioner with the help of cross-examination or leading evidence
and unless it is so proved in accordance with law, in my opinion, he
cannot be discharged of his liability. In this regard it is apt to refer the
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decision in Rallis India Ltd vs. Poduru Vidya Bhusan & Ors6, wherein in
paragraph 15 the Hon'ble Supreme Court held that, "Strictly speaking, the
ratio of the SMS Pharmaceuticals (S.M.S. Pharmaceuticals Limited Vs.
Neeta Bhalla and Anr., 2005 (8) SCC 89) can be followed only, after the
factum that accused were the Directors or Partners of a Company or Firm
respectively at the relevant point of time, stands fully established.
However, in cases like the present, where there are allegations and
counter-allegations between the parties regarding the very composition of
the firm, the above rule of 'specific averment' must be broadly construed.
Indeed, it would be nothing short of a travesty of justice if the Directors of
a Company of Partners of a Firm, who, having duped a third-party by
producing false documents (like a fake partnership deed) or making false
statements (that some others were in charge of the Company/Firm), at a
subsequent stage, seek protection from prosecution on the ground that
they were not directly indicted in the complaint - such a proposition
strikes against one of the very basic tenets of the law of natural justice,
which is, that none shall be allowed to take advantage of his own default.
Of course, the above observation is of a general nature, and has no
bearing on the present case, but nonetheless, the power to quash a
criminal proceeding with respect to an offence under Section 141 of the
Act, must be exercised keeping this advisory and caveat in mind.". This
6. 2012 (1) SCC (CRI) 778
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advisory is considered in Gunmala Sales (Supra) in paragraph 22.
12) In Gunmala Sales (Supra), in paragraph 26, the Hon'ble
Supreme Court held that, SMS Pharma-(1), which is a three-Judge Bench
decision, still holds the field. So far as Directors who are not signatories to
the cheques or who are not Managing Directors or Joint Managing
Directors are concerned, it is necessary to aver in the complaint filed
under Section 138 read with Section 141 of the NI Act that at the relevant
time when the offence was committed, the Directors were in charge of
and were responsible for the conduct of the business of the company. This
is a basic requirement. There is no deemed liability of such Directors. In
the case in hand, the complaint clearly mentions that, accused Nos.2 to 7
are Directors and accused Nos.8 & 9 are Authorized Signatories of the
accused No.1. They all are responsible for the day to day affairs, conduct
and management of the business of accused No.1.
13) In paragraphs 27, 28, 29 and 30 the Hon'ble Supreme Court
observed and held as under :
27. This averment assumes importance because it is the
basic and essential averment which persuades the Magistrate
to issue process against the Director. That is why this Court in
SMS Pharma-(1) observed that the question of requirement of
averments in a complaint has to be considered on the basis of
provisions contained in Sections 138 and 141 of the NI Act
read in the light of the powers of a Magistrate referred to in
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Sections 200 to 204 of the Code which recognize the
Magistrate's discretion to reject the complaint at the threshold
if he finds that there is no sufficient ground for proceeding.
Thus, if this basic averment is missing the Magistrate is legally
justified in not issuing process. But here we are concerned
with the question as to what should be the approach of a High
Court when it is dealing with a petition filed under Section
482 of the Code for quashing such a complaint against a
Director. If this averment is there, must the High Court
dismiss the petition as a rule observing that the trial must go
on? Is the High Court precluded from looking into other
circumstances if any? Inherent power under Section 482 of
the Code is to be invoked to prevent abuse of the process of
any court or otherwise to secure ends of justice. Can such
fetters be put on the High Court's inherent powers? We do not
think so.
28. SMS Pharma-(1), undoubtedly, says that it is necessary
to specifically aver in the complaint that the Director was in
charge of and responsible for the conduct of the company's
business at the relevant time when the offence was
committed. It says that this is a basic requirement. And as we
have already noted, this averment is for the purpose of
persuading the Magistrate to issue process. If we revisit SMS
Pharma-(1), we find that after referring to the various
provisions of the Companies Act it is observed that those
provisions show that what a Board of Directors is empowered
to do in relation to a particular company depends upon the
roles and functions assigned to Directors as per the
memorandum and articles of association of the company.
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There is nothing which suggests that simply by being a
Director in a company, one is supposed to discharge particular
functions on behalf of a company. As a Director he may be
attending meetings of the Board of Directors of the company
where usually they decide policy matters and guide the course
of business of a company. It may be that a Board of Directors
may appoint sub-committees consisting of one or two
Directors out of the Board of the company who may be made
responsible for the day-to-day functions of the company. This
Court further observed that what emerges from this is that the
role of a Director in a company is a question of fact depending
on the peculiar facts in each case and that there is no universal
rule that a Director of a company is in charge of its everyday
affairs. What follows from this is that it cannot be concluded
from SMS Pharma-(1) that the basic requirement stated
therein is sufficient in all cases and whenever such an
averment is there, the High Court must dismiss the petition
filed praying for quashing the process. It must be remembered
that the core of a criminal case are its facts and in factual
matters there are no fixed formulae required to be followed by
a court unless it is dealing with an entirely procedural matter.
We do not want to discuss 'the doctrine of Indoor
Management' on which submissions have been advanced.
Suffice it to say, that just as the complainant is entitled to
presume in view of provisions of the Companies Act that the
Director was concerned with the issuance of the cheque, the
Director is entitled to contend that he was not concerned with
the issuance of cheque for a variety of reasons. It is for the
High Court to consider these submissions. The High Court
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may in a given case on an overall reading of a complaint and
having come across some unimpeachable evidence or glaring
circumstances come to a conclusion that the petition deserves
to be allowed despite the presence of the basic averment. That
is the reason why in some cases, after referring to SMS
Pharma-(1), but considering overall circumstances of the case,
this Court has found that the basic averment was insufficient,
that something more was needed and has quashed the
complaint.
29. When a petition is filed for quashing the process, in a
given case, on an overall reading of the complaint, the High
Court may find that the basic averment is sufficient, that it
makes out a case against the Director; that there is nothing to
suggest that the substratum of the allegation against the
Director is destroyed rendering the basic averment
insufficient and that since offence is made out against him, his
further role can be brought out in the trial. In another case,
the High Court may quash the complaint despite the basic
averment. It may come across some unimpeachable evidence
or acceptable circumstances which may in its opinion lead to a
conclusion that the Director could never have been in charge
of and responsible for the conduct of the business of the
company at the relevant time and therefore making him stand
the trial would be abuse of the process of court as no offence is
made out against him.
30. When in view of the basic averment process is issued the
complaint must proceed against the Directors. But, if any
Director wants the process to be quashed by filing a petition
under Section 482 of the Code on the ground that only a bald
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averment is made in the complaint and that he is really not
concerned with the issuance of the cheque, he must in order to
persuade the High Court to quash the process either furnish
some sterling uncontrovertible material or acceptable
circumstances to substantiate his contention. He must make
out a case that making him stand the trial would be abuse of
the process of court. He cannot get the complaint quashed
merely on the ground that apart from the basic averment no
particulars are given in the complaint about his role, because
ordinarily the basic averment would be sufficient to send him
to trial and it could be argued that his further role could be
brought out in the trial. Quashing of a complaint is a serious
matter. Complaint cannot be quashed for the asking. For
quashing of a complaint it must be shown that no offence is
made out at all against the Director.
14) Conspectus of the aforesaid discussion is that, the complaint
filed by Respondent No.1 contains the basic and necessary averments
required to constitute the alleged offences under Sections 138 and 141 of
the N.I Act. Admittedly, the accused No.1 has taken a huge loan amount
of Rs.30 Crores. However, not a single accused including the Petitioner
has informed as to what the accused No.1 did of that amount and how
much accused No.1 has repaid. It is axiomatic that the loan amount at
issue constitutes public funds. Repayment of such loans on time, keep the
nation's economy growing. The Petitioner was connected with accused
No.1 for sufficient time, therefore, he was required to explain the use of
the loan amount and why it was not repaid in time, for satisfaction of the
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Court. The Petitioner has not informed whether he was getting any
remuneration or honorarium or salary from accused No.1, when he was
serving there. Nor the Petitioner has clarified as to whether he was
engaged in any other occupation to earn income. As such it is difficult to
say with certainty that, the Petitioner has not received any benefit of the
loan amount at the relevant time. Therefore, and for the reasons in the
forgoing paragraphs, even though the Petitioner denied his liability for
the alleged offences by relying the documents referred above, said
documents are not of requisite unimpeachable and uncontrovertible
standard which is beyond suspicion or doubt or totally acceptable,
thereby helping to safely conclude that, the Petitioner is innocent. In fact,
it is purely a question of trial. It is trite, the power of quashing should be
exercised sparingly and where, read as a whole, the factual foundation for
the offence has been laid in the complaint it should not be quashed. In
short, considering the facts and circumstances of the case, Article 227 of
the Constitution of India and Section 482 of Cr.P.C. together, there is a
prima facie case against the Petitioner of the alleged offences and no case
is made out for quashing the subject complaint and the impugned Order.
The Petition thus failed and liable to be dismissed and is dismissed,
accordingly.
PREETI
HEERO
JAYANI (SHYAM C. CHANDAK, J.)
