Madras High Court
G.R.Surana vs Uco Bank on 31 January, 2022
Crl.O.P.No.21021 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 31.01.2022
CORAM
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
Crl.O.P.No.21021 of 2018
&
Crl.M.P.No.11411 of 2018
G.R.Surana,
S/o.Udairaj Surana. ... Petitioner/Accused 3
Versus
UCO Bank,
Represented by its Assistant General Manager,
Flagship Corporate Branch, PLA Rathina Towers,
Mount Road, Chennai 600 006. ... Respondent / Complainant
PRAYER : Criminal Original Petition filed under Section 482 of Cr.P.C. to
call for the records relating to C.C.No.1672 of 2016 on the file of the learned
XIV Metropolitan Magistrate and Fast Track Court No.2, Egmore at
Alllikulam, Chennai 600 003 and quash the same so far as the petitioner/3rd
Accused is concerned.
For Petitioner ... Mr.S.J.Jagadev
for M/s.P.V.Preeja
For Respondent ... Mr.R.Chandramohan
1/8
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.21021 of 2018
ORDER
The Criminal Original Petition has been filed to quash the
proceedings initiated under Section 138 of the Negotiable Instruments Act,
1881.
2.The allegation in the complaint indicates that the first accused is a
Company and the other accused persons namely A2 to A5 are the Managing
Director and Directors of the Company and they are also aware of the day-
to-day affairs of the Company. The accused persons, in the usual course of
their business, availed various financial credit facilities from the respondent/
Bank including opening of Letter of credit for supply of goods and raw
materials from M/s.Sri Balaji Khem Products. The Letter of credit was
obtained for a sum of Rs.1,58,00,000/- (Rupees One Crore Fifty Eight
Lakhs Only) and Letter of credit for 90 days was issued in favour of the
accused on 15.07.2015. In terms of the Letter of credit, the accused was
required to pay a total sum of Rs.1,58.00,000/- only, which the accused did
not pay within 90 days. Towards, the said due, the accused gave a cheque
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Crl.O.P.No.21021 of 2018
dated 07.07.2015. The complainant/Bank presented the cheque for
collection and the same was returned as “account closed”. Thereafter, the
complainant issued a statutory notice to all the accused persons, intimating
them about the dishonour of the cheque. Since the accused did not make the
payment, the complainant/Bank has initiated the prosecution in
C.C.No.1672 of 2016 before the XIV Metropolitan Magistrate Court,
Egmore, Chennai under Sections 138 and 142 of Negotiable Instruments
Act, 1881.
3. The learned counsel for the petitioner submitted that the petitioner
herein/A3 resigned from the first accused/Company, even prior to the
issuance of the cheque and opening of the Letter of Credit. He further
submitted that the petitioner herein was the non-executive Director of the
first accused/Company. Further, Form DIR-12 filed along with the typed set
of papers, proves the fact that he had resigned prior to the issuance of the
cheque and therefore, he cannot be prosecuted. He further submitted that
there is no specific averment against the petitioner in the complaint and
hence, this complaint is not maintainable.
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Crl.O.P.No.21021 of 2018
4.In support of his submissions, the learned counsel for the petitioner
placed reliance on the judgment of the Gujarat High Court in the case of
Dr.Rajan Sanatkumar Joshi Vs Rajnikant Govindlal Shah and Another
reported in 2007 CRI.L.J. 2318. He further relied upon the judgment of the
Hon'ble Supreme Court in the case of S.M.S.Pharmaceuticals Ltd Vs
Neeta Bhalla and Another reported in AIR 2005 SC 3512.
5. The learned counsel for the respondent submitted that, in similar
case, the defence raised against the petitioner herein/A3 before this Court
was dismissed, vide order dated 23.10.2018 in Crl.O.P.No.24740 of 2018.
Further, he has submitted that, whether the petitioner/A3 resigned prior to
the issuance of cheque or availed loan facility, is a disputed fact and the
same cannot be considered by this Court. Therefore, merely on the basis of
some papers issued by the Ministry of Corporate Affairs, without any
authentication, those documents cannot be relied upon. He further submitted
that, in the very alleged resignation letter, the petitioner stated that he is the
Executive Chairman of the first accused/Company and he resigned from the
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Crl.O.P.No.21021 of 2018
first accused/Company on 29.04.2015, however, Form DIR-12 was filed
before the Registrar of Companies only on 08.04.2016. The cheque got
dishonoured on 07.07.2015. Hence, submitted that there are sufficient
averments against the petitioner and he is liable for the prosecution of the
offence.
6. Heard the learned counsel for the petitioner and the learned
counsel for the respondent and also perused the materials available on
record.
7. As rightly submitted by the learned counsel for the respondent,
that the documents themselves are disputed and merely because the
submissions are made before this Court, the same cannot be relied upon,
without proving the authentication as required under law. The documents
that have to be proved before the Court for reliance. Therefore, the
contention that the petitioner has resigned much prior to the issuance of
alleged cheque dated 07.07.2015 or not to be seen only in trial Court.
Further, in the very resignation letter, he has stated that he is the Executive
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Crl.O.P.No.21021 of 2018
Chairman of the first accused/Company at the earlier point of time.
Therefore, the facts which are disputed by the other side cannot be dealt
with by this Court, as it is for the petitioner to establish the same before the
trial Court.
8. This Court is of the view that the petitioner is one of the Executive
Directors in the affairs of the Company. The respondent-Bank pleaded that
the cash credit facility has been extended from time to time to the accused
persons, who are in-charge of the Company. Merely on the ground that in
the pleadings with regard to role played by each of the Directors, is not
stated as strictly as required under law, the entire proceedings cannot be
quashed. It is open to the petitioner to establish the fact that he was not in-
charge of the Company at the earlier point of time, and those things have to
be established only before the trial Court. Hence, this Court does not find
any merit in this Criminal Original Petition and the same is liable to be
dismissed.
9. Accordingly, this Criminal Original Petition is dismissed.
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Crl.O.P.No.21021 of 2018
Consequently, connected miscellaneous petition is closed.
10. At this juncture, the learned counsel appearing for the petitioner
seeks some indulgence to dispense with the personal appearance of the
petitioner before the trial Court. Hence, the personal appearance of the
petitioner, before the trial Court, is dispensed with. The trail Court shall
proceed with the trial and complete the same as expeditiously as possible on
its own merits.
31.01.2022
ms/nsa
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.21021 of 2018
N. SATHISH KUMAR, J
ms/nsa
To
The XIV Metropolitan Magistrate
Fast Track Court No.2,
Egmore at Alllikulam,
Chennai 600 003.
Crl.O.P.No.21021 of 2018
&
Crl.M.P.No.11411 of 2018
31.01.2022
https://www.mhc.tn.gov.in/judis
