Bombay High Court
Kanchan Ankush Palve vs Bhaskar Chandrabhan Kadam And Others on 18 February, 2025
2025:BHC-AUG:5325
917-*Cri-WP-810,395,396,398-24.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 810 OF 2024
Sou. Kanchan Ankush Palve
Age: 37 Years, Occu: Business,
R/o. Shriram, Plot No.91, Aishwarya Nagari,
Pipeline Road, Shriram Chowk, Savedi
Ahmednagar ... PETITIONER
(Ori. Accused No.1)
VERSUS
1. Nitin Arjun Shinde
Age: 46 Years, Occu: Business,
R/o. Plot No.2, Behind Parijat Apartment,
Sahakarnagar, Savedi, Ahmednagar
District : Ahmednagar
2. Shri Gautam Swami Hospital & Research
Centre Private Ltd.,
Sr. No.86, A1, Plot No.91, Aishwarya Nagari,
Savedi, Ahmednagar
Present Address: At Present:
T.P. No.4 Plot No.47-1,2,3,4
Crystal Hospital, Savedi Road,
Ahmednagar
3. Shri Gautam Swami Hospital & Research
Centre Private Ltd. Through its directors.
(i) Shri Ganesh Sarjerao Fasale
Age: 34 Years, Occ: Business,
R/o. Flat No.204, Om Residency,
Opp. Gaikwad Hospital, Tapovan Road,
Savedi, Ahmednagar
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(ii) Dr. Dnyaneshwar Narayan Darade
Age: 45 Years, Occ: Doctor,
R/o. Shikshak Colony,
Malibabhulgaon, Pathardi,
Ahmednagar
At present: Devnath Clinic, Kharbanda
Kasar, Tal Pathardi, District Ahmednagar
(iii) Dr. Jitendra Chaganrao Dhavale
Age: 43 Years, Occ: Doctor,
R/o: Katorewadi, Kamargaon,
Tal: Nagar, Dist: Ahmednagar
(iv) Laxmikant Vinayak Pargaonkar
Age: 46 Years, Occ: Service,
R/o: Gauri, House No.13/B, Anandban
Colony, Pipeline Road, Near Bajarang
High School, Savedi, Ahmednagar ... RESPONDENTS
(Res. No.1 is Ori. Complainant,
Res. Nos.2 to 3(i to iv) are Ori
Accused Nos. 2 to5)
WITH
CRIMINAL WRIT PETITION NO. 395 OF 2024
Sou. Kanchan Ankush Palve
Age: 37 Years, Occu: Business,
R/o. Shriram, Plot No.91, Aishwarya Nagari,
Pipeline Road, Shriram Chowk, Savedi,
Ahmednagar ... PETITIONER
(Ori. Accused No.1)
VERSUS
1. Bhaskar Chandrabhan Kadam
Age: 46 Years, Occ: Business,
R/o: House No.80, Khadoba Road,
Umbracha Mala, Majarsumba,
Tal: Nagar, District: Ahmednagar
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2. Shri Gautam Swami Hospital & Research
Centre Private Ltd., Through its Director,
Shri. Ganesh Sarjerao Fasale
Age: 34 Years, Occ: Business,
R/o: Flat No.204, Om Residency,
Opp. Gaikwad Hospital, Tapovan Road,
Savedi, Ahmednagar
3. Shri Gautam Swami Hospital & Research
Centre Private Ltd., through its Director,
Dr. Dnyaneshwar Narayan Darade
Age: 45 Years, Occ: Doctor,
R/o: Shikshak Colony,
Malibabhulgaon, Pathardi, Ahmednagar
At present: Devnath Clinic, Kharbanda
Kasar, Tal Pathardi, District Ahmednagar
4. Shri Gautam Swami Hospital & Research
Centre Private Ltd., through its Director,
Dr. Jitendra Chaganrao Dhavale
Age: 43 Years, Occ: Doctor,
R/o: Katorewadi, Kamargaon,
Tal: Nagar, Dist: Ahmednagar
5. Shri Gautam Swami Hospital & Research
Centre Private Ltd., through its Director,
Laxmikant Vinayak Pargaonkar
Age: 46 Years, Occu. Servicr,
R/o: Gauri, House No.13/B, Anandban
Colony, Pipeline Road, Near Bajarang
High School, Savedi, Ahmednagar ... RESPONDENTS
(Res. No.1 is Ori. Complainant.
Res. Nos. 2 to 5 are Ori.Accused
Nos. 2 to 5)
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WITH
CRIMINAL WRIT PETITION NO. 396 OF 2024
Sou. Kanchan Ankush Palve
Age: 37 Years, Occu: Business,
R/o. Shriram, Plot No.91, Aishwarya Nagari,
Pipeline Road, Shriram Chowk, Savedi,
Ahmednagar ... PETITIONER
(Ori. Accused No.1)
VERSUS
1. Rupali Manoj Jagtap
Age: 46 Years, Occ. Business,
R/o. Gopal Smruti, Bhutkarwadi, Savedi,
Ahmednagar
District : Ahmednagar
2. Shri Gautam Swami Hospital & Research
Centre Private Ltd., through its Director,
Shri Ganesh Sarjerao Fasale
Age: 34 Years, Occ: Business,
R/o: Flat No.204, Om Residency,
Opp. Gaikwad Hospital, Tapovan Road,
Savedi, Ahmednagar
3. Shri Gautam Swami Hospital & Research
Centre Private Ltd., through its Director,
Dr. Dnyaneshwar Narayan Darade
Age: 45 Years, Occ: Doctor,
R/o: Shikshak Colony,
Malibabhulgaon, Pathardi, Ahmednagar
At present: Devnath Clinic, Kharbanda
Kasar, Tal Pathardi, District Ahmednagar
4. Shri Gautam Swami Hospital & Research
Centre Private Ltd., through its Director,
Dr. Jitendra Chaganrao Dhavale
Age: 43 Years, Occ: Doctor,
R/o: Katorewadi, Kamargaon,
Tal: Nagar, Dist: Ahmednagar
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5. Shri Gautam Swami Hospital & Research
Centre Private Ltd., through its Director,
Laxmikant Vinayak Pargaonkar
Age: 46 Years, Occu. Servicr,
R/o: Gauri, House No.13/B, Anandban
Colony, Pipeline Road, Near Bajarang
High School, Savedi, Ahmednagar ... RESPONDENTS
(Res. No.1 is Ori. Complainant.
Res. Nos. 2 to 5 are Ori.Accused
Nos. 2 to 5)
WITH
CRIMINAL WRIT PETITION NO. 398 OF 2024
Sou. Kanchan Ankush Palve
Age: 37 Years, Occu: Business,
R/o. Shriram, Plot No.91, Aishwarya Nagari,
Pipeline Road, Shriram Chowk, Savedi,
Ahmednagar ... PETITIONER
(Ori. Accused No.1)
VERSUS
1. Vikram Sukhadev Athare
Age: 68 Years, Occ: Nil,
Through his constituted attorney
Yogesh V. Athare
Age: 42 years, Occ: Business,
Both residing at Parewadi,
Post Mandve, Tal: Pathardi,
District: Ahmednagar
2. Shri Gautam Swami Hospital & Research
Centre Private Ltd., through its Director,
Shri Ganesh Sarjerao Fasale
Age: 34 Years, Occ: Business,
R/o: Flat No.204, Om Residency,
Opp. Gaikwad Hospital, Tapovan Road,
Savedi, Ahmednagar
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3. Shri Gautam Swami Hospital & Research
Centre Private Ltd., through its Director,
Dr. Dnyaneshwar Narayan Darade
Age: 45 Years, Occ: Doctor,
R/o: Shikshak Colony,
Malibabhulgaon, Pathardi, Ahmednagar
At present: Devnath Clinic, Kharbanda
Kasar, Tal Pathardi, District Ahmednagar
4. Shri Gautam Swami Hospital & Research
Centre Private Ltd., through its Director,
Dr. Jitendra Chaganrao Dhavale
Age: 43 Years, Occ: Doctor,
R/o: Katorewadi, Kamargaon,
Tal: Nagar, Dist: Ahmednagar
5. Shri Gautam Swami Hospital & Research
Centre Private Ltd., through its Director,
Laxmikant Vinayak Pargaonkar
Age: 46 Years, Occu. Servicr,
R/o: Gauri, House No.13/B, Anandban
Colony, Pipeline Road, Near Bajarang
High School, Savedi, Ahmednagar ... RESPONDENTS
(Res. No.1 is Ori. Complainant.
Res. Nos. 2 to 5 are Ori.Accused
Nos. 2 to 5)
....
Mr. Pratik P. Kothari, Advocate for Petitioner in all Writ Petitions
Mr. A. S. Gandhi, Advocate for Respondent No.1 in all Writ Petitions
....
CORAM : Y. G. KHOBRAGADE, J.
DATE : 18.02.2025
ORAL JUDGMENT :-
1. Rule. Rule made returnable forthwith. Heard finally with
the consent of both the sides at the stage of admission.
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2. By the present Petitions under Article 226 and 227 of the
Constitution of India read with Section 482 of the Code of Criminal
Procedure, the Petitioner in all these Petitions are prayed for
quashment of criminal proceeding pending on the file of the learned
Additional Chief Judicial Magistrate, Ahmednagar, for the offences
punishable under Sections 138 of the Negotiable Instruments Act, as
under:-
Sr. Criminal Criminal Cheque Cheque
No. W.P. No. Complaint Number Number amount
and Date (Rs.)
1. 810 of 2024 SCC No.3130 of 2023 000011 15,00,000/
Addl. CJM, Ahmednagar 06.02.2023 -
(Court No.19)
2. 395 of 2024 SCC No.3084 of 2023 000012 15,00,000/
Addl. CJM, Ahmednagar 06.02.2023 -
(Court No.16)
3. 396 of 2024 SCC No.3128 of 2023 000013 15,00,000/
Addl. CJM, Ahmednagar 06.02.2023 -
(Court No.17)
4. 398 of 2024 SCC No.3129 of 2023 000014 15,00,000/
Addl. CJM, Ahmednagar 06.02.2023 -
(Court No.18)
3. In above complaints, all the Petitioners are Accused and
the Respondent No.1 is the original complainant. For the sake of
brevity, I would like to refer the parties to the present Petition in their
original capacity.
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4. Having regard to the submissions canvassed on behalf of
both the sides, I have gone through the record. It is a matter of
record that the above referred cheques in the tabular form were
issued on 06.02.2023 in favour of the complainant by the accused
Shri Ganesh Sarjerao Fasale from his Saving Account
No.002002100023953 for discharging legal liabilities. However, all
above cheques are dishonoured on account of "funds insufficient".
The complainant issued the mandatory notice u/s 138 of NI Act to the
accused persons i.e. (1) Gautam Swami Hospital and Research Centre
and it's Directors i.e. 2(1) Kanchan Ankush Palve, 2(2) Ganesh
Sarjerao Fasale, 2(3) Dr. Dnyaneshwar Narayan Darade, 2(4) Jitendra
Chhaganrao Dhawale, 2(5) Dr. Laxmikant Vinayak Pargaonkar.
5. Even after service of notice, the Respondents/accused
allegedly not complied with the mandatory notice, therefore, the
complainant filed separate complaints under Section 138 of the
Negotiable Instruments Act and prayed for appropriate punishment.
6. The learned counsel for the accused No.2(1) canvassed in
vehemence that, all above cheques which are the subject matter of the
above complaints are issued by Shri Ganesh Sarjerao Fasale [accused
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No.2(2)] from his personal saving account and all above cheques are
not issued from the account of accused No.1 Firm. So also, those
cheques were not issued for discharging legal liabilities of the accused
No.1 firm. Therefore, the Accused No. 1 firm and it's directors are
not personally responsible for dishonour of all these cheques of the
complaints. Therefore the complaint as against the present
Petitioner/original accused No.2(1) is not maintainable.
7. It is further canvassed that, on 23.08.2021, a partnership
firm was executed between the complainant and accused No.2(2)
Shri Ganesh Sarjerao Fasale being Chairman of the accused No.1 firm.
The present Petitioner/original accused No.2(1)] was already
resigned from the Directorship of accused No.1 firm with effect from
21.08.2021 prior to issuance of cheques and resignation of the
Accused No. 2(1) accepted by the Board of Directors of the accused
No.1 firm. Therefore, on the day of issuance of cheques i.e.
06.02.2023, the Petitioner/accused No.2(1) was not Director of the
accused No.1 firm. Therefore, the Petitioner/accused No.2(1) is not
responsible for dishonour of the cheques in question, hence, prayed
for quashment of all four complaints.
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8. To buttress these submissions, the learned counsel for the
Petitioner placed reliance on Mainuddin Abdul Sattar Shaikh Vs. Vijay
D. Salvi, MANU/SC/0720/2015 : AIR 2015 SC 2579, wherein it is
held that, as per Section 138 of the N.I. Act, the drawer of the cheque
from whose account cheques are issued for discharge of any debt or
other liability and cheques are dishonoured.
9. It further relied on Judgment dated 06.01.2015 passed by
this Court in Criminal Writ Petition No.1271 of 2023 (Sou. Kanchan
Ankush Palve Vs Athare Patil Memorial Hospital & Research Centre
Pvt. Ltd., and others), wherein it is held that, on the day of issuance
of the cheque, the accused was resigned from the post of Directorship
and said resignation was accepted by the Board of Directors of the
Company. So also, entry was effected with the Registrar under the
Companies Act prior to issuance of instrument involved in the
complaint. Therefore, the accused was not responsible for the
transaction.
10. Per contra, the learned counsel appearing for the
Respondent/original complainant canvass that, the Petitioner is one
of the Director of Accused no. 1 Shri Gautam Swami Hospital and
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Research Centre Private Limited and responsible for day to day
business of accused No.1 firm. The Petitioner accused and other
Directors of the accused No.1 firm were authorized the accused
No.2(2) Shri Ganesh Sarjerao Fasale to enter into an agreement on
behalf of the accused No.1 firm. Therefore, the accused No.2(2)
issued independent cheques in question in favour of the complainant
for discharging legal liabilities. However, all cheques for sum of
Rs.15,00,000/- are dishonoured. Therefore, merely the Petitioner/
original accused No.2(1) tendered resignation, it does not epso-facto
relieved her from legal liability of the Respondent No.1 firm.
Therefore, prayed for dismissal of the Petitions.
11. In support of these submissions the learned counsel for
the complainant relied on Suhas Bhand Vs. State of Maharashtra and
another, 2009(3) Bom.C.R. (Cri) 784 : 2009 All.M.R.(Cri) 2614 ,
wherein the Division Bench of this Court held in para No.33 as
under:-
"33. A reading of these judgments makes for the following legal
propositions with regard to the resignation of a Director of a
registered Company:
(i) If the accused in a criminal prosecution under Section
138 of the Negotiable Instruments Act produces a certified
copy of Form No.32 certified by the ROC and there is no
dispute of the factum of his resignation, the accused is
entitled to be discharged from the prosecution.
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(ii) If his resignation is not accepted or admitted by the
complainant upon production of the certified copy of Form
No.32, the accused would have to prove the truth of the
contents of the said certified copy i.e. the factum of his
resignation. Such accused cannot be discharged simplicitor
upon production of a certified copy of Form No.32.
(iii) If the complainant produces any evidence showing the
continuance of the accused as Director of the Company
after the date of the resignation claimed by him as per the
certified copy of Form No.32 produced by him, such
accused cannot be discharged simplicitor upon production
of such certified copy of Form No.32. He would have to lead
evidence to prove the factum of his resignation. Similarly
the complainant would be entitled to prove the factum of
his continuing as Director. The trial under Section 138 read
with Section 141 of the Negotiable Instruments Act would,
therefore, proceed."
12. Needless to say that, the Respondent complainant in all
these Petitions have filed criminal complaint SCC Nos. 3130 of 2023,
3084 of 2023, 3128 of 2023 and 3129 of 2023 for dishnour of cheque
numbers 000011, 000012, 000013 and 000014 issued on 06.02.2023
for an amount of Rs.15,00,000/- each. However, all these cheques
are dishonoured due to insufficient fund in account of the Accused
No.2(2) Shri Ganesh Sarjerao Fasale.
13. I have gone through the record. It is matter of record that,
all the cheques subject matters of all the complaints are issued from
Saving Account of the accused No.2(2) who is one of the Director of
accused No.1 Hospital and Research firm. The complainant has not
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disputed fact that all these cheques are are are issued from the
personal saving account of accused No.2(2). The complainant has not
made averment that, subject matter of cheques are issued from
account of the respondent No.1 firm. Therefore, it is abundant clear
that, when cheques are issued from Saving Account of the accused
No.2(2) and those cheques are dishnoured in such circumstances all
the Directors of the accused No.1 firm cannot held to be liable for
prosecution for dishonour of the cheques.
14. Moreover, the Petitioner/accused No.2(1) already
resigned from the post of Director of the accused No.1 Hospital and
Research firm on 21.08.2021 prior to issuance of subject matter of
cheques. Therefore, considering the law laid down in case of Pooja
Ravinder Devidasani Vs. State of Maharashtra, AIR 2015 SC 675 , and
Rajesh Viren Shah Vs. Radington (India) Ltd., 2024 AIR (SCW) 1047;
2024 (3) Mh.L.J. 650, when the cheque was issued after acceptance
of the Director and no allegations are levelled against the Director,
therefore, merely being a Director of the company, he cannot be
prosecuted for the offence under Section 138/141 of the Negotiable
Instruments Act.
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15. In Sunita Palita and Others Vs. Panchami Stone Quarry,
AIR 2022 SC 3548; 2022 (10) SCC 152, it is held that, the Director of
a company, who was not In-charge or responsible for conduct of the
business of the company at the relevant time, would not be liable for
prosecution. As per the decision in case of SMS Pharmaceuticals
Limited cited (supra), the liability under section 138/141 of the N.I.
Act arises from being In-charge of and responsible for conduct of the
business of the company at the relevant time, when the offence was
committed and not on the basis of merely holding a designation or
office in a company. It would be a travesty of justice to drag
Directors, who may not be even be connected with the issuance of a
cheque or dishonour thereof, such as Director, (Personnel), Director
(Human Resources Development) etc., into criminal proceedings
under the N.I. Act, only because of their designation.
16. In Ajay Rampal Sarda Vs. Pankaj Ravilal Shah and
another, 2021 All M.R. (Cri) 284: 2021 (3) Mh.L.J.(Cri) 50 , it is held
that, in absence of averments in the complaint under Section 138 that
at the time of commission of an offence, the person accused was in-
charge of the conduct of business of the firm and responsible for
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issuance of cheque. Merely because, the applicant was the partner in
the partnership firm is not sufficient to make him liable for offence
under N.I. Act, particularly, when no specific role is attributed to the
applicant in the complaint. The applicant cannot be deemed to be in-
charge of and responsible for the conduct of the day to day affairs of
the business. The requirement is that the person sought to be liable,
should be in charge of and responsible for the conduct of the business
of the firm at the relevant time.
17. Reverting back to the present case, the cheques subject
matter of different complaints as described above, are not issued from
the account of the accused No.1 Hospital and Research firm, but all
these cheques are issued from saving account of accused No.2(2).
Therefore, to my judicious conscious for dishonour of the cheques in
all these Petitions, the present Petitioner who was not Director of
accused No.1 firm cannot be prosecuted. Therefore, continuation of
the criminal proceedings as against the present Petitioner would
certainly amount to abuse of process of law, hence, all above
complaints instituted u/s 138 of N.I. Act against the present Petitioner
are liable to be quash and set aside.
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18. In view of the above, I am inclined to grant these
Petitions and proceed to pass the following order:-
:: O R D E R ::
(i) All the Writ Petitions are allowed.
(ii) Criminal Complaint Nos. (i) SCC Nos.3130 of 2023, (ii)
3084 of 2023, (ii) 3128 of 2023 and (iv) 3129 of 2023
pending on the file of the learned Chief Judicial
Magistrate, Court Nos.16, 17, 18 and 19, Ahmednagar,
are hereby quashed and set aside to the extent of the
present Petitioner/original accused No.2(1).
(iii) No order as to costs.
(iv) Accordingly, the Rule is made absolute.
[ Y. G. KHOBRAGADE, J. ]
SMS
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