Dismissed

Paresh Kapadia v. the State of Maharashtra and Ors.

Bombay HC26 Jun 2013WP/1301/2012

Case brief

AI extract

What is this about?

In this criminal writ petition, the High Court dismissed the application filed by the complainant challenging an order by the Sessions Court that quashed the criminal proceedings against the Chief Financial Officer of an accused company under the Negotiable Instruments Act, finding no jurisdictional error by the lower court.

What did the court decide?

The writ petition was declined and dismissed; the order of the Sessions Court quashing the process against the applicant was effectively upheld.

Paresh Kapadia Vs the State of Maharashtra and Ors. — Cheque Dishonour | Bombay HC (2013)

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CWP-1301.12

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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APPELLATE SIDE

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CRIMINAL WRIT PETITION NO. 1301 OF 2012

PARESH KAPADIA

.. APPLICANT

VERSUS

STATE OF MAHARASHTRA & ORS... RESPONDENTS

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WITH

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CRIMINAL WRIT PETITION NO. 1352 OF 2012 CRIMINAL WRIT PETITION NO. 1353 OF 2012 CRIMINAL WRIT PETITION NO. 1354 OF 2012

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Ms. Luann Crasto i/b M/s. K. Ashar & Co., for the petitioner (discharged).

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Mr. Ranjan Dwivedi i/b M/s. Dwivedi Law & Co., Advocates for the petitioner in all matters Mrs. R. V. Newton, APP for the State in all matters Mr. Vikas Sharma, Advocate for R. No. 2, in all matters

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CORAM:-ABHAY M. THIPSAY, J. DATED : 26/06/2013

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P.C.

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M/s. K. Ashar & Co., who were appearing for the petitioner are discharged.

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Heard Mr. Ranjan Dwivedi, the learned counsel for the petitioner. Heard Mr. Vikas Sharma, the learned counsel for

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CWP-1301.12

the respondent No. 2, i.e. original accused No. 14.

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I have gone through the order passed by the sessions court.

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The petitioner is the complainant in C.C. No. 568/SS/2009, pending before the Metropolitan Magistrate's 14^th Court, Girgaon, Mumbai. Including the respondent No. 2, there are 16 accused in the said case which is in respect of an offence punishable u/s 138 of the Negotiable Instruments Act. The accused No. 1 is a company. The accused No. 2 is also a company. The other accused are said to be liable for the offence in question by virtue of the provisions of section 141 of the Negotiable Instruments Act.

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The learned Magistrate issued process against all the accused persons including the respondent No. 2. The respondent No. 2 moved the court of sessions in revision, challenging the order issuing process against him. The respondent No. 2 claimed that, he was only an employee of the company, as Chief Financial Officer, and that there was no clarification in the complaint with respect to his duties and liabilities. According to him, therefore, he was not liable to be prosecuted for the offence allegedly committed by the companies, the accused Nos. 1 and 2. 6. The learned Addl. Sessions Judge, who heard the

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revision, observed that the respondent No. 2 (applicant before the sessions court) was not signatory to any documents executed in favour of the petitioner herein. He also observed that, the respondent No. 2 herein was not signatory in respect of the cheque in question. He was of the view that, in the absence of documents and materials, the involvement of the respondent No. 2 could not be presumed by the court for the liability arising out of the transaction between the complainant and the accused-companies. Holding so, he quashed the order issuing process, so far as it related to the respondent No. 2 herein i.e. original accused No. 14.

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Before this court also, the only emphasis that has been placed is on the designation of the respondent No. 2 as the Chief Financial Officer. That he is merely an employee of the accused companies, is not disputed. That he had the authority or capacity to take a decision to pay the dues payable by the companies has neither been or nor being indicated.

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Merely on the strength of his designation as the 'Chief Financial Officer', he cannot automatically be held to be responsible for the offence allegedly committed by the companies.

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The writ jurisdiction conferred on this court is of an extraordinary nature. It can be exercised where a subordinate

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court has committed a patent error of law resulting in miscarriage of justice or where a subordinate court has exceeded the jurisdiction vested in it by law. Such is not the case here.

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Consequently, I decline to entertain the present writ petition. The petition is dismissed.

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(ABHAY M. THIPSAY, J.)

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md.saleem

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Paresh Kapadia v. the State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

Paresh Kapadia v. the State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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