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NON-REPORTABLE    

IN THE SUPREME COURT OF INDIA  CRIMINAL APPELLATE JURISDICTION  

 CRIMINAL APPEAL NO(s).1157 OF 2019  (arising out of SLP(Crl.) No. 2663 of 2017)  

 ANIL KHADKIWALA      ...APPELLANT(S)             

VERSUS  

STATE (GOVERNMENT OF NCT OF DELHI)  

AND ANOTHER               ...RESPONDENT(S)  

JUDGMENT    

NAVIN SINHA, J.  

The application preferred by the appellant under Section  

482, Cr.P.C. to quash the summons issued in complaint case  

no.3403/1/2015 was dismissed by the High Court opining that  

since the earlier Crl.M.C. No.877 of 2005 for the same relief had  

already been dismissed, the second application was not  

maintainable.  

2. Respondent no.2 filed a complaint under Section 142 read  

with Section 138 of the Negotiable Instruments Act (hereinafter

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referred to as “the Act”) against the appellant who was the  

Director of M/s. ETI Projects Ltd., the Company in question.  It  

was alleged that the accused person had issued cheques dated  

15.02.2001 and 28.02.2001, which were dishonoured upon  

presentation. The appellant had preferred Crl.M.P. No.1459 of  

2005 for quashing the same. He took the defence, without any  

proof that he had already resigned from the Company on  

20.12.2000 and which was accepted by the Board of Directors on  

20.01.2001.  The application was dismissed on 18.09.2007 after  

noticing the plea of resignation, solely on the ground that the  

cheques were issued under the signature of the appellant.  

3. The appellant then preferred a fresh application under  

Section 482 giving rise to the present proceedings.  The High  

Court noticing the reliance on Form 32 issued by the Registrar of  

Companies, under the Companies Act, 1956, in proof of  

resignation by the appellant prior to the issuance of the cheques,  

issued notice, leading to the impugned order of dismissal  

subsequently.  

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4. Learned counsel for the appellant submitted that there was  

no bar to the maintainability of a second application under  

Section 482, Cr.P.C. in the peculiar facts and circumstances of  

the case, relying on Superintendent and Remembrancer of  

Legal Affairs, West Bengal vs. Mohan Singh and Ors., AIR  

1975 SC 1002.  

5. Learned counsel for respondent no.2 relied upon order  

dated 06.05.2019 of this Court in Atul Shukla vs. The State of  

Madhya Pradesh and another (Criminal Appeal No.837 of  

2019) to contend that such an application was not maintainable.   

The cheques being post-dated, the appellant cannot escape its  

answerability.   

6. We have considered the respective submissions on behalf of  

the parties and are of the opinion that the appeal deserves to be  

allowed for the reasons enumerated hereinafter.  

7. The complaint filed by respondent no.2 alleges issuance of  

the cheques by the appellant as Director on 15.02.2001 and

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28.02.2001.  The appellant in his reply dated 31.08.2001, to the  

statutory notice, had denied answerability in view of his  

resignation on 20.01.2001. This fact does not find mention in the  

complaint. There is no allegation in the complaint that the  

cheques were post-dated.  Even otherwise, the appellant had  

taken a specific objection in his earlier application under Section  

482, Cr.P.C. that he had resigned from the Company on  

20.01.2001 and which had been accepted. From the tenor of the  

order of the High Court on the earlier occasion it does not appear  

that Form 32 issued by the Registrar of Companies was brought  

on record in support of the resignation.  The High Court  

dismissed the quashing application without considering the  

contention of the appellant that he had resigned from the post of  

the Director of the Company prior to the issuance of the cheques  

and the effect thereof in the facts and circumstances of the case.  

The High Court in the fresh application under Section 482,  

Cr.P.C. initially was therefore satisfied to issue notice in the  

matter after noticing the Form 32 certificate.  Naturally there was  

a difference between the earlier application and the subsequent  

one, inasmuch as the statutory Form 32 did not fall for

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consideration by the Court earlier. The factum of resignation is  

not in dispute between the parties. The subsequent application,  

strictly speaking, therefore cannot be said to a repeat application  

squarely on the same facts and circumstances.   

8. In Mohan Singh (supra), it was held that a successive  

application under Section 482, Cr.P.C. under changed  

circumstances was maintainable and the dismissal of the earlier  

application was no bar to the same, observing:   

“2. …… Here, the situation is wholly different. The  earlier application which was rejected by the High  Court was an application under Section 561A of the  CrPC to quash the proceeding and the High Court  rejected it on the ground that the evidence was yet to  be led and it was not desirable to interfere with the  proceeding at that stage. But, thereafter, the criminal  case dragged on for a period of about one and half  years without any progress at all and it was in these  circumstances that respondents Nos. 1 and 2 were  constrained to make a fresh application to the High  Court under Section 561-A to quash the proceeding.  It is difficult to see how in these circumstances it  could ever be contended that what the High Court  was being asked to do by making the subsequent  application was to review or revise the Order made by  it on the earlier application. Section 561-A preserves  the inherent power of the High Court to make such  Orders as it deems fit to prevent abuse of the process  of the Court or to secure the ends of justice and the  High Court must, therefore, exercise its inherent

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powers having regard to the situation prevailing at  the particular point of time when its inherent  jurisdiction is sought to be invoked. The High Court  was in the circumstances entitled to entertain the  subsequent application of Respondents Nos. 1 and 2  and consider whether on the facts and circumstances  then obtaining the continuance of the proceeding  against the respondents constituted an abuse of the  process of the Court or its quashing was necessary to  secure the ends of justice. The facts and  circumstances obtaining at the time of the  subsequent application of respondents Nos. 1 and 2  were clearly different from what they were at the time  of the earlier application of the first respondent  because, despite the rejection of the earlier  application of the first respondent, the prosecution  had failed to make any progress in the criminal case  even though it was filed as far back as 1965 and the  criminal case rested where it was for a period of over  one and a half years………...”  

9. In Harshendra Kumar D. vs. Rebatilata Koley Etc.,   

2011 Crl.L.J. 1626, this Court held:   

 “22. Criminal prosecution is a serious matter; it  affects the liberty of a person. No greater damage can  be done to the reputation of a person than dragging  him in a criminal case. In our opinion, the High Court  fell into grave error in not taking into consideration  the uncontroverted documents relating to Appellant's  resignation from the post of Director of the Company.  Had these documents been considered by the High  Court, it would have been apparent that the  Appellant has resigned much before the cheques  were issued by the Company. As noticed above, the  Appellant resigned from the post of Director on

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March 2, 2004. The dishonoured cheques were  issued by the Company on April 30, 2004, i.e., much  after the Appellant had resigned from the post of  Director of the Company. The acceptance of  Appellant's resignation is duly reflected in the  resolution dated March 2, 2004. Then in the  prescribed form (Form No. 32), the Company  informed to the Registrar of Companies on March 4,  2004 about Appellant's resignation. It is not even the  case of the complainants that the dishonoured  cheques were issued by the Appellant. These facts  leave no manner of doubt that on the date the offence  was committed by the Company, the Appellant was  not the Director; he had nothing to do with the affairs  of the Company. In this view of the matter, if the  criminal complaints are allowed to proceed against  the Appellant, it would result in gross injustice to the  Appellant and tantamount to an abuse of process of  the court.”  

10. Atul Shukla (supra) is clearly distinguishable on its facts  

as the relief sought was for review/recall/modify the earlier order  

of dismissal in the interest of justice.  Consequently, the earlier  

order of dismissal was recalled.  It was in that circumstance, it  

was held that in view of Section 362, Cr.P.C. the earlier order  

passed dismissing the quashing application could not have been  

recalled.  The case is completely distinguishable on its own facts.  

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11.  The Company, of which the appellant was a Director, is a  

party respondent in the complaint. The interests of the  

complainant are therefore adequately protected.  In the entirety  

of the facts and circumstances of the case, we are unable to hold  

that the second application for quashing of the complaint was not  

maintainable merely because of the dismissal of the earlier  

application.    

12. The impugned order of the High Court is set aside.  The  

appeal is allowed and the proceedings against the appellant alone  

are quashed.   

.……………………….J.        (Ashok Bhushan)                    

    ………………………..J.  

        (Navin Sinha)    New Delhi,  July 30, 2019.