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    Cri.Misc.Appln.No.85 of 2003

    Decided On, 10 January 2005

    At, High Court of Delhi


    For the Appearing Parties: ----

Judgment Text


( 1 ) APPLICATION is considered and allowed. Petition is restored to its original number. Crl. Rev. P. No. 984/2002

( 2 ) THE petitioner, Vijay Chandela seeks setting aside the order of 29. 10. 2002 whereby an application for discharge filed by him was dismissed by the court of Additional Session Judge, Delhi. THE Complaint against the petitioner was filed u/s 138 of Negotiable Instruments Act in which the cheque in question was issued on behalf of the accused No. 1 company. The petitioner alleged that he was merely a Manager of the company and was not liable to be prosecuted u/s 138 of the negotiable Instruments Act. The learned counsel for the petitioner refers to the memorandum of Association and the account opening form of the bank to show that one R. K. Jain and one Neelam Jain had been responsible for the conduct of the business of the company respondent no. 1. The question whether the petitioner was responsible for the affairs of the company and liable for prosecution u/s 138 of the negotiable Instruments Act cannot be decided at this stage on the basis of the documents filed by the defence. The complainant alleged that the petitioner had been representing himself to be Director of the company. Further, although the company may be initially incorporated with certain directors the directors keep changing from time to time. The petitioner may prove during trial his status in the company with reference to appropriate documents which he may bring in his defence. In a recent judgment in State of Orissa versus Debendra Nath Padhil the Supreme Court re-examined its view in Satish Mehra vs. Delhi Administration and Another 2 and held that at the time of framing of charge or taking cognizance, the accused has no right to produce any material. In view this judgment also the petitioner cannot ask the Court to discharge him on the basis of documents filed by him. The complainant, who says that the petitioner represented himself to be the Director of the Company cannot be deprived of an opportunity to prosecute him without having been given a fair chance to prove his claim against the petitioner. The Trial Court has rightly held that the question whether the accus

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ed No. 1 is liable or not, as a Director or even as a manager of accused No. 1 company can only be decided after evidence is led by both the parties. ( 3 ) I see no force in the revision petition, the same is accordingly dismissed.