Anita Malhotra vs Apparel Export Promotion Counc
2009 Latest Caselaw 5264 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI


+    CRL.M.C. 1238/2007 & Crl.M.A. No. 4322/2007 (stay)


     ANITA MALHOTRA                    ..... Petitioner
                       Through:    Mr. Amit Singh, Adv.

                 versus


     APPAREL EXPORT PROMOTION COUNC      ..... Respondent
                    Through: Mr. Rajesh Anand, Adv.


     CORAM:
     HON'BLE MR. JUSTICE V.K. JAIN


                ORDER

% 16.12.2009

This is a petition for quashing the complaint filed by the petitioner and

two others under Section 138 of Negotiable Instruments Act.

A perusal of the complaint shows that certain cheques were issued to

the complainant by accused No.1 M/s Larareil Exports Pvt. Ltd. The cheques,

when presented to the bank, were dishonored on account of funds being

insufficient in the account. After serving a notice of demand and on account

of failure of the accused persons to pay the amount of cheques despite

notice, this complaint was filed on the allegations that accused No.2 Mohan

Soi and accused No. 3 Anita Malhotra were Directors of accused No.1 M/s

Larareil Exports Pvt. Ltd. and were responsible to accused No.1 for conduct

of its business and were In-charge of acts and deeds of the company and

were also responsible to its day to day affairs, funding monies etc. It has been specifically alleged that they were In-charge of and responsible to

accused No. 1 M/s Larareil Exports Pvt. Ltd. at the time offence was

committed.

The case of the petitioner is that though the cheques were of 1 st June,

2004, she had resigned as a Director of accused No.1 w.e.f. 31 st August,

1998.

On last date of hearing, the petitioner was granted an opportunity to

file certified copy of Form-32 which could have established the claim of the

petitioner that she was not a Director of accused No.1, at the time offence

under Section 138 of Negotiable Instruments Act was committed. The

learned counsel for the petitioner states that Form-32 is not available in the

record of the Registrar of Companies, the same having not been filed by the

company. He has submitted that in the Annual Return dated 30 th September,

1999, filed by accused No.1, the petitioner has not been shown as a Director

of accused No.1. It is settled proposition of law that at this stage, the Court

need not go into the defence that may be available to the accused and as to

examine the matter solely from the point of view of the complainant. Form-

32 is the only authentic document, which could have established as to

whether the petitioner was a Director of the company on a particular date or

not. In the absence of Form-32, the question, as to whether the petitioner

was a Director of accused No.1 on the date offence under Section 138 of

Negotiable Instruments Act was committed or not, has become a disputed

question of fact, which can be adjudicated upon only during trial. The Annual Return filed by the company is neither an admitted document nor a public

document. Therefore, it is not permissible to look into this document and

take a view of the question as to whether petitioner was a Director of

accused No.1 at the relevant date or not.

The complainant has already made the requisite allegations against

the petitioner in para-4 of the complaint. Hence, at this stage no ground is

made out for quashing the complaint filed against the petitioner.

CRL.M.C. 1238/2007 stands disposed of.

V.K. JAIN, J DECEMBER 16, 2009 Ag