- (1.) The petitioner, who has been facing his prosecution under Section 138 of the Negotiable Instruments Act, in connection with the Complaint Case No. 38/C/2013, now pending before the learned Metropolitan Magistrate, 5th Court, Calcutta, has approached this Court for quashing of the same on the following grounds, (1) At the relevant time, when the cheque in question was issued, he was no more the Director of the Company, the principal accused, having resigned from the Directorship with effect from November 3, 2007 and Form No. 32 under the Companies Act was submitted on November 21, 2007. (2) In the four corners of the complaint, there was no allegation with reference to Section 141 of the Negotiable Instruments Act, as to how they were responsible to the Company for running its business. So far as the first ground is concerned, the learned Counsel for the petitioner relies on two decisions of the Hon'ble Apex Court - one is in the case of Harshendra Kumar D. Vs. Rebatilata Koley & Ors., 2011 1 SCC(Cri) 1139 and the another is in the case of Anita Malhotra Vs. Apparel Export Promotion Council & Anr., 2012 1 SCC(Cri) 496.
(2.) So far as the second ground is concerned, the learned Counsel for the petitioner relies on four decisions of the Hon'ble Apex Court, namely, in the cases of S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla, 2005 8 SCC 89; K.K. Ahuja Vs. V.K. Vora & Anr., 2009 10 SCC 48; Central Bank of India Vs. Asian Global Limited & Ors., 2010 11 SCC 203 and National Small Industries Corporation Limited Vs. Harmeet Singh Paintal & Anr., 2010 3 SCC 330.
(3.) On the other hand, the learned Counsel for the complainant/Opposite Party No. 1 vehemently opposed this application and with reference to the petitioner's application under Section 205 of the Code of Criminal Procedure, being Annexure-P-5 to this application, contended that in the said application, it was categorically stated that the petitioner was one of the Directors of the principal accused, the Company, namely, Vikash Metal & Power Limited. He further submitted that this averment amounts to admission and is conclusive proof of the fact with regard to admission and no further proof is necessary. He, therefore, vehemently contended that the petitioner himself in his aforesaid application having admitted that he was one of the Directors of the said Company, cannot now take the plea that at the time of issuance of the cheque, he was no more the Director of the company, as much earlier he resigned from the said post.;