LAL, J. - (1.) THESE six petitions, three by petitioners S. S. Brar and three by petitioner Ramesh Inder Singh have been filed under Section 482 Cr. P. C. for quashing of the order dated 11. 5. 2004 passed by the learned Additional Chief Judicial Magistrate No. 10, Jaipur City, Jaipur in three complaints taking cognizance against them along with 9 others for offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter called in short the "act" ).
(2.) SINCE these petitions seek the same relief and the legal controversy involved in these petitions is identical and common, I have heard learned counsel for the parties jointly on the admission of these petitions which are being disposed of by this common order. Briefly stated, the relevant facts which are not disputed are that complainant-non-petitioner is a Company duly incorporated and registered under the companies Act, 1956. It was earlier incorporated by the name of M/s. Krishna Texport India Ltd. which name has now been duly changed on 27. 1. 2004. Likewise, M/s. Punjab Wireless Systems Ltd. is also a Company duly incorporated and registered under the Companies Act, 1956. The complainant-non-petitioner-Company provided loan facility to M/s. Punjab Wireless Systems Ltd. in the year 1988 who issued various cheques in favour of the complainant-non-petitioner-Company from time to time but the same were dishonoured about which complaints for offences under Section 138 read with Section 141 of the Act were filed in the competent courts which, it is said, are still pending. M/s. Punjab Wireless Systems Ltd. , the accused-Company also issued three cheques bearing Nos. 01417157, 575490 and 0635083 for Rs. 1 Crore, Rs. 1 Crore and Rs. 2 Crores, respectively on 1. 9. 2003 in favour of the complainant-non-petitioner-Company. These cheques were issued in the earlier name of M/s. krishna Texport India Ltd. and were signed by Vedprakash arrayed as accused No. 4 in the complaints. These cheques were presented separately for payment, but were dishonoured and returned with the remark "exceed arrangement and refer to drawer. " The complainant-Company after due notice and other necessary formalities filed three separate complaints for offence u/s. 138 read with Section 141 of the Act in the Court of learned Additional Chief Judicial Magistrate No. 10, Jaipur City, Jaipur arraying the petitioners as accused Nos. 5 and No. 7 in these three complaints. The Punjab State Industrial Development Corporation which is wholly the State owned financial institution of the Punjab State, extended financial assistance to M/s. Punjab Wireless Systems Ltd. and to protect the financial interest of the State the Punjab State Industrial Development Corporation was given a right under Article 128 (a) of the Articles of Association and under Article 158 of the Articles of Memorandum to nominate Directors on the Board of the aforesaid Company. Petitioner S. S. Brar being an officer of the Indian Administrative Service of the Punjab cadre (who is presently on deputation with the Government of India as Joint Secretary in the Ministry of Health & Family Welfare) was appointed/nominated as the Managing Director of P. S. I. D. C. as Director on the Board of Directors of M/s. Punjab Wireless Systems Ltd. vide letter dated 17. 11. 1997 which letter was withdrawn vide letter dated 11. 7. 2000. Petitioner Ramesh Inder Singh being also an officer of the Indian Administrative Service of the Punjab Cadre (who is presently on deputation with the Government of India as Joint Secretary in the Ministry of Chemicals and Fertilizers) in his capacity as Principal Secretary to the Chief Minister of the Punjab State with the additional charge of the post of Secretary, Department of Industries was nominated as Director on the Board Directors of M/s. Punjab Wireless Systems Ltd. vide letter dated 3. 3. 1997 which was withdrawn vide letter dated 9. 6. 2000 as the provisions of Sections 27, 41, 41a and 44 of the State Financial Corporation Act, 1951 (hereinafter called in short the "act of 1951") were made applicable to the Punjab State Industrial Development Corporation vide Notification dated 5. 10. 1989. The complainant-non-petitioner has pleaded that all the accused persons including the present petitioners are incharge of and responsible for the management of the business of the accused-Company whereas the case of the present petitioners is that they being nominee Directors of the accused-Company in their official capacity they are neither incharge of nor responsible for day to day management of the business of the accused-Company as they have not signed the cheques and they were not on the Board of Directors at the time the cheques in question were issued. So, the prosecution against them is incompetent and liable to be quashed.
(3.) LEARNED counsel for the petitioners has contended that as per the second proviso of Section 141 of the Act and provision of Section 41a of the Act of 1951, no prosecution is legally maintainable against the petitioners. The order taking cognizance and the criminal proceedings commenced and pending as against them tantamount to abuse of the process of the court and the same deserve to be quashed. He has also submitted that the petitioners being not Directors on the Board of Directors at the relevant time the cheques were issued by the accused-Company in favour of the complainant-non-petitioner-Company, they cannot be held responsible therefor. Learned counsel for the petitioners has referred to the cases in Pepsi Foods Ltd. and Anr. vs. Special Judicial Magistrate and Ors. : (1998) 5 SCC 749, K. P. G. Nair vs. Jindal Menthol India Ltd. : (2001) 10 SCC 218, State of Haryana and Ors. vs. Bhajan Lal and Ors. : 1991 Supp. (1) SCC 335, M. S. M. Sharma vs. Sri Krishana Sinha and Ors. : AIR 1959 SC 395, Pankaj Mehra and Anr. vs. State of Maharashtra and Ors. : (2000) 2 SCC 756, Dwarka Prasad vs. Dwarka Das Saraf : AIR 1975 SC 1758, Ram Narain Sons Ltd. and Ors. vs. Asstt. Commissioner of Sales Tax and Ors. : AIR 1955 SC 765, S. M. S. Pharmaceuticals Ltd. vs. Neeta Bhalla and Anr. : (2005) 8 SCC 89 = RLW 2005 (4) 2386 (SC) and State of Orissa vs. Debendra Nath Padhi : (2005) 1 SCC 568 = RLW 2005 (3) SC 414. Learned counsel for the complainant-non-petitioner has contended that it was not disclosed that the petitioners were nominee Directors and were not incharge of and responsible to the company for its day to day management of the business. He has also submitted that proviso second inserted in Section 141 of the Act nullifies and negatives the Section itself and, therefore, this cannot be pressed into service in favour of the petitioners. ;