Home Case Index All Cases Indian Laws Indian Laws + HC Indian Laws - 2021 (4) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (4) TMI 285 - HC - Indian LawsDishonor of Cheque - accused failed to pay the cheque amount within 15 days of receipt of legal Demand Notice - enforceable outstanding debt/liability or not - complaint sufficient to proceed against the petitioner as contemplated under Sections 138 and 141 of Negotiable Instruments Act or not - continuation of the proceedings against the petitioner, who claims to be neither the signatory of the cheque nor the person in charge of the accused-company - HELD THAT - The Hon ble Supreme Court in N. RANGACHARI VERSUS BHARAT SANCHAR NIGAM LTD 2007 (4) TMI 621 - SUPREME COURT has held that an advertence to Sections 138 and 141 of the Negotiable Instruments Act shows that on the other elements of an offence under Section 138 being satisfied, the burden is on the Board of Directors or the officers in charge of the affairs of the company to show that they are not liable to be convicted. Any restriction on their power or existence of any special circumstance that makes them not liable is something that is peculiarly within their knowledge and it is for them to establish at the trial such a restriction or to show that at the relevant time they were not in charge of the affairs of the Company. Further, the Hon ble Supreme Court in RAJESHBHAI MULJIBHAI PATEL AND OTHERS ETC. VERSUS STATE OF GUJARAT AND ANOTHER ETC. 2020 (2) TMI 412 - SUPREME COURT has held that When disputed questions of facts are involved which need to be adjudicated after the parties adduce evidence, the complaint under Section 138 of the N.I. Act ought not to have been quashed by the High Court by taking recourse to Section 482 Cr.P.C. . Whether petitioner s employment with the accused-company was confined to maintenance of accounts or he was the Director or Authorized Signatory of accused-company and whether or not the cheque in question was signed by him or whether complainant is able to bring sufficient material before the court to rope in petitioner for the offence in question, are the aspects which can be established during trial, therefore, it would be against principles of law to arrive at a conclusion without going into the merits of the case - petition dismissed.
Issues Involved:
1. Issuance and dishonor of cheque under Sections 138/141/142 of the Negotiable Instruments Act, 1881. 2. Responsibility and liability of the petitioner as Director or Authorized Signatory of the accused company. 3. Validity of the summoning order and dismissal of discharge application by the trial court. 4. Allegations of forgery and theft of the cheque. Issue-wise Analysis: 1. Issuance and dishonor of cheque under Sections 138/141/142 of the Negotiable Instruments Act, 1881: The complainant, a company engaged in trading metals, alleged that the accused-company owed them ?80,00,000/- for steel scrap supplied, evidenced by invoices. The accused-company issued a cheque for this amount, which was dishonored with the remark "Account Blocked." A legal Demand Notice was sent, and upon non-payment, a complaint was filed under Sections 138/141/142 of the Negotiable Instruments Act. 2. Responsibility and liability of the petitioner as Director or Authorized Signatory of the accused company: The petitioner claimed he was merely an employee and not a Director or Authorized Signatory of the accused company. He joined the company on 01.07.2015, after the transactions in question. The complainant, however, provided a document from the MCA website listing the petitioner as an Authorized Representative. The trial court found prima facie evidence to summon the petitioner, noting the cheque was issued during his tenure. 3. Validity of the summoning order and dismissal of discharge application by the trial court: The trial court's summoning order dated 31.08.2017 and the dismissal of the discharge application on 21.12.2019 were challenged. The petitioner argued that the trial court did not consider his non-involvement and the absence of evidence proving his role in the dishonor of the cheque. The trial court maintained that such issues should be addressed during the trial, referencing legal precedents that support the continuation of proceedings when factual disputes exist. 4. Allegations of forgery and theft of the cheque: The petitioner alleged that the cheque was forged and stolen, supported by a police complaint filed in May 2017. The complainant disputed this, asserting the cheque was issued by the petitioner to discharge the company's liability. The court noted the timing of the forgery complaint, which came after the cheque's dishonor and the legal notice, suggesting it might be an afterthought to evade liability. Conclusion: The court concluded that the factual disputes regarding the petitioner's role and the authenticity of the cheque should be resolved through trial. The petition to quash the summoning order and the dismissal of the discharge application was dismissed, affirming the trial court's decision to proceed with the case under Sections 138/141/142 of the Negotiable Instruments Act. The court emphasized that these issues require thorough examination of evidence, which is appropriate for a trial setting.
|