Bombay High Court
Parth S/O. Bhadresh Mehta vs The State Of Maharashtra And Another on 7 November, 2025
2025:BHC-AUG:30372
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1386 OF 2024
Parth s/o Bhadresh Mehta
Age : 36 years, Occupation : Business,
Address Flat No.1701, Ocean 360,
Walkeshwar Road, Mumbai-400006.
...PETITIONER
-VERSUS-
1. The State of Maharashtra.
2. M/s Mahavir Ginning and Pressing
Having its office at 207, Arhat Market,
Laxman Chowdy, Mondha Road,
Tal. & Dist.Aurangabad.
Through its Proprietor
Shri Devendra Indrachand Challani,
Age : Major, Occupation : Business,
Resident of CIDCO, Aurangabad,
Tal. & Dist. Aurangabad.
...RESPONDENTS
...
Shri Abhaykumar D. Ostwal, Advocate for the petitioner.
Shri D.B. Bhange, APP for respondent No.1/ State.
Shri Pramod Patni, Advocate for respondent No.2/ complainant.
...
CORAM : SUSHIL M. GHODESWAR, J.
Reserved on : 07 October 2025
Pronounced on : 07 November 2025
JUDGMENT :
-
1. Heard.
2. Rule. Rule made returnable forthwith and by
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consent of parties, heard finally.
3. By this petition under Article 227 of the Constitution
of India r/w Section 482 of the Code of Criminal Procedure,
1973 (for short, 'the CrPC'), the petitioner seeks to quash and set
aside the order of issuance of process dated 19.06.2017 passed
by the learned Judicial Magistrate, First Class, Aurangabad, in
S.C.C. No.3602/2017 as well as the said proceedings filed by
respondent No.2/ complainant against the petitioner (original
accused No.3) for the offence punishable under Section 138 of
the Negotiable Instruments Act, 1881 (for short, 'the NI Act').
4. Respondent No.2/ complainant filed private
complaint bearing S.C.C. No.3602/2017 before the learned
JMFC, Aurangabad, on 06.06.2017, contending therein that
accused No.1 is a limited company and accused Nos.2 to 4 are its
directors and they are actively participating in the affairs of the
said company. It is contended that the accused persons purchased
cotton bales from the complainant from time to time on credit
basis and accused No.1/ company had issued two cheques for
amounts of Rs.80,09,315/- and Rs.80,09,316/- dated 15.01.2017
and 15.02.2017, respectively, drawn on Union Bank of India,
Lower Parel Branch, Mumbai. It is alleged that the said cheques
were signed by accused No.2, who was authorized to sign the
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cheques. Since the said cheques were dishonoured, therefore,
respondent No.2/ complainant filed the said complaint for the
offence punishable under Section 138 of the NI Act. On
19.06.2017, the learned JMFC, on the Roznama itself, was
pleased to pass the order of issuance of process.
5. Learned advocate Shri Ostwal for the petitioner
submitted that the impugned order of issuance of process is not
even signed by the learned JMFC and it is passed without
conducting an enquiry under Section 202 of the CrPC. The
impugned order is passed only on Roznama. According to
learned advocate, cheques in question were neither signed by the
petitioner, nor was he authorized Director of the company to sign
the cheques at the relevant time. The petitioner was only non-
executive director of the company during the relevant period
when the cheques in question were issued. The petitioner was not
incharge of day to day affairs and was also not responsible for
the company's day to day business. In this regard, he pointed out
Form No.DIR 12 regarding appointment of the petitioner as non
executive director of the company on 07.05.2016 and Form
No.DIR 11 regarding resignation as non executive director on
01.11.2017. He submitted that even the impugned order of
issuance of process is not duly signed by the learned JMFC.
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Learned advocate, therefore, submitted that the impugned order
of issuance of process as well as the proceedings initiated by
respondent No.2 are abuse of process of law and, same need to
be quashed and set aside.
6. On the other hand, learned advocate Shri Patni
appearing for respondent No.2/ complainant submitted that under
Section 141(1) of the NI Act, the law does not prescribe to
specify precise administrative role of the directors of the
company to establish liability for cheque dishonour. According to
learned advocate Shri Patni, general averments that the director
was incharge of and responsible for the company's business, are
sufficient at the complaint stage. Respondent No.2/ complainant
has pleaded general role of all accused. Therefore, burden lies on
the directors to prove during trial that they were not incharge of
and responsible for the company's business.
7. Learned advocate Shri Patni further submitted that
under Sections 138 and 145 of the NI Act, the learned Magistrate
can summon accused without holding an enquiry under Section
202 of the CrPC. Therefore, the provisions of Section 202(2) of
the CrPC are inapplicable to complaints filed under Section 138
of the NI Act.
8. In support of his above submissions, learned
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advocate Shri Patni has relied on following judgments:-
(a) HDFC Bank Limited v. State of Maharashtra and
another, 2025 LiveLaw (SC) 624.
(b) Paresh P. Rajda vs. State of Maharashtra and
another, (2008) 7 SCC 442.
(c) Sunil Todi and others vs. State of Gujarat and
another,
(2022) 16 SCC 762.
(d) Madhu Malu Gadekar vs. State of Maharashtra,
2008 All M.R. (Cri.) 2474.
(e) S.P. Mani and Mohan Dairy vs. Dr. Snehalatha
Elangovan, (2023) 10 SCC 685.
(f) Expeditious Trial of Cases under Section 138 of NI
Act. Suo Motu Writ Petition (Crl.) No.2 of 2020, decided on
April 16, 2021. (2021) 16 SCC 116.
9. Learned advocate Shri Patni tendered the copy of
the order dated 31.07.2025 passed in Criminal Writ Petition
No.1453/2024 (Parth Bhadresh Mehta vs. The State of
Maharashtra and another) and submitted that similar type of
petition filed by the present petitioner is dismissed by this Court.
He, therefore, prayed for dismissal of this petition.
10. After hearing learned advocates for the respective
parties, I have perused impugned orders and available record. It
is evident from the Roznama that the process was issued against
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the petitioner, however, there is no signature of the learned
JMFC. This position is not disputed by learned advocate for
respondent No.2. Learned advocate Shri Ostwal has invited my
attention to the judgment of this Court in the case of the present
petitioner reported in 2019 SCC OnLine Bom. 405 : (2019) 5
MhLJ 771 (Parth Bhadresh Mehta and others vs. The State of
Maharashtra and another) wherein, it is held that the provision of
Section 202 of the CrPC is mandatory in nature and that needs to
be followed even when the complaint is filed under Section 138
of the NI Act. In the said matter, the order of issuance of process
against the petitioner came to be quashed and set aside and the
said matter was remanded back to the learned JMFC in order to
follow the procedure laid down under Section 202 of the CrPC.
The facts of said case (2019) 5 MhLJ 771 are identical with the
facts of the present case. In the present case, admittedly the
petitioner is not residing within territorial jurisdiction of the
learned JMFC, who has passed the impugned order of issuance
of process.
11. In Criminal Application No.1182/2017 filed by the
petitioner at the Principal Seat challenging the order of issuance
of process under Section 138 of the NI Act, this Court vide order
dated 24.09.2019 has allowed the said application and observed
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that Section 141(1) of the NI Act contemplates that where if the
person committing the offence under Section 138 of the NI Act is
a company, every person who, at the time of the offence was
committed, was incharge of and was responsible to the Company
for the conduct of its business as well as the company, shall be
deemed to be guilty of the offence and shall be liable to be
proceeded against and punished accordingly. In view of this
specific, clear and unambiguous provision, vicarious liability of a
person of being prosecuted for commission of an offence by the
company, would arise only if at the time when the offence is
alleged to have been committed, he was in-charge of and was
responsible to the company for conduct of its business.
Therefore, it is imperative on the part of the complainant to make
specific averment in the complaint that a particular person was
incharge of and was responsible to the company for the conduct
of its business. In absence of such averment, initiation of the
proceedings against a person who has not been specifically
attributed to have a role in the company's business, cannot be
sustained.
12. Now coming to the case in hand, respondent No.2/
complainant has filed the complaint against accused No.1
company for allegedly issuing two cheques drawn on the Union
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Bank of India, Lower Parel Branch, Mumbai. The said cheques
came to be dishonoured and, therefore, the complaint is filed.
The cheques in question were dated 15.01.2017 and 15.02.2017
and it is also admitted by respondent No.2/ complainant that the
petitioner has not signed those cheques. The record shows that
the petitioner was appointed on 07.05.2016 as non executive
director of the company and resigned as such on 01.11.2017.
Thus, during the period of alleged offence, the petitioner was not
incharge of and was not responsible for day to day affairs of the
company. Paragraph No.3 of the impugned complaint filed by
respondent No.2 reads thus:-
"3) The accused No.1 is a Limited Company engaged in
the business of trading in cotton bales and its export. The
accused Nos.2 to 4 are the directors of the said Company and
they are actively participating in the affairs of the said company.
All the accused persons knows the entire transaction entered into
with the present complainant and other suppliers also."
13. A bare perusal of the above paragraph No.3 would
reveal only general allegations against the petitioner and no
specific role is mentioned. The accusations are general in nature
without pointing out who is responsible for the conduct of
business of the company at the time of issuance of cheques. Such
specific averment is sine qua non for proceeding against the
director of the company. Hence, compelling the petitioner to face
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trial in such circumstances would amount to abuse of the process
of the Court.
14. Though learned advocate Shri Patni has relied upon
several judgments, however, they are clearly distinguishable on
facts. In HDFC Bank Ltd. v. State of Maharashtra and Sunil Todi
v. State of Gujarat (supra), the Hon'ble Supreme Court dealt with
cases where there were specific averments in the complaint that
the directors were in charge of and responsible for the conduct of
the business of the company. In contrast, the present complaint
contains only omnibus and general allegations without any
particulars as to the role of the petitioner. Likewise, in S.P. Mani
(supra), the Hon'ble Supreme Court reiterated that general
averments may suffice at the threshold only where the complaint
otherwise discloses active participation or control of the accused
over the company's affairs. No such material exists in the present
case. Therefore, the ratio of decisions relied on by respondent
No.2 is inapplicable to the facts of this case.
15. Though learned advocate Shri Ostwal for the
petitioner has placed reliance on several decisions of the Hon'ble
Supreme Court and this Court, it is not necessary to reproduce
each of them in detail, since the legal position on the necessity of
specific averments under Section 141 of the NI Act and the
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mandatory nature of inquiry under Section 202 Cr.P.C. is well
settled. The principle laid down therein has been duly considered
while adjudicating the present petition.
16. In view of the above discussion, the Criminal Writ
Petition is allowed. The impugned order of issuance of process
dated 19.06.2017 as well as the proceedings bearing S.C.C.
No.3602/2017 pending on the file of the learned JMFC,
Aurangabad, are quashed and set aside, to the extent of the
petitioner.
17. Rule is made absolute in the above terms.
kps (SUSHIL M. GHODESWAR, J.)
