2017 (3) TMI 749 - HC - Indian Laws

Complaint under Section 138 NI Act - dishonour of cheques - Summon order - whether the petitioner is jointly & severally responsible for the day to day conduct of the business of the Company- M/s Sabreen & Co. as alleged by the respondent/complainant in the complaint under Section 138 NI Act? - Held that - The Form C dated 18.01.2013 shows one Shanu Malik as a partner of the Company- M/s Sabreen & Co. and the signature on the letter dated 09.06.2011 made by the partner on behalf of the Company- M/s Sabreen & Co. resembles with the signature of the present petitioner s signature made on the petition as well as on the vakalatnama. The plea taken by the respondent/complainant is that Shanu Malik and Shahne Alam are the same person. The partnership deed placed on record is of the year 1999 and Form C is of the year 2013. There is no Form C filed by the parties for the relevant period, i.e. for the year 2011 when the alleged offence was committed. The determination of whether the petitioner was the partner of the Company- M/s Sabreen & Co. or he was responsible for the day to day affairs of the Company in presence of the letter dated 09.06.2011 would be determined after leading the evidences by the parties in the trial. Mere taking of the plea by the petitioner that he was not the partner of the Company- M/s Sabreen & Co. ipso facto does not dispels him from the alleged allegation under Section 138 NI Act. The allegations alleged by the respondent/complainant are disputed questions of fact which cannot be looked into at this stage and the onus for proving otherwise lies on the petitioner which can only be discharged at the trial. Reliance is placed on the judgment of this Court in the case MOJJ Engineering Systems Ltd. & Ors. vs. A.B. Sugars Ltd 2008 (8) TMI 951 - DELHI HIGH COURT Therefore, in presence of the letter dated 09.06.2011 the plea taken by the petitioner loses its significance. Consequently, the impugned summoning order dated 29.08.2012 as well as the order on notice dated 27.11.2013 passed by the learned Metropolitan Magistrate, NI Act (West)/Delhi in C.C. No. 3871/1 does not warrant any interference by this Court to invoke inherent powers under Section 482 Cr.P.C. and the present petition is dismissed.

Summary

Issues:
1. Setting aside summoning order under Section 482 Cr.P.C.
2. Deletion of petitioner's name in C.C. No. 3871/1
3. Allegations under Section 138 of the Negotiable Instruments Act, 1881
4. Partnership and liability of the petitioner in the Company
5. Legal demand notices and defense evidence
6. Determination of partnership during trial
7. Disputed questions of fact and burden of proof

Analysis:

1. The petitioner sought to set aside the summoning order dated 29.08.2012 under Section 482 Cr.P.C. and remove his name from C.C. No. 3871/1. The complaint under Section 138 NI Act alleged dishonor of post-dated cheques issued by the petitioner on behalf of the Company, leading to legal demand notices and subsequent legal proceedings.

2. The petitioner contended that he was not a partner in the Company and denied issuing the cheques in question. He relied on judgments to support his defense, emphasizing the lack of partnership documentation and his non-involvement in the Company's affairs.

3. The respondent argued that the petitioner's liability was established through documents like Form C and a letter indicating payment commitments made on behalf of the Company. The respondent maintained that the summoning order and subsequent notice were justified based on the evidence presented.

4. The dispute centered on whether the petitioner was jointly responsible for the Company's conduct, as alleged by the respondent. The petitioner's defense of not being a partner or involved in day-to-day operations was challenged based on documentary evidence and commitments made on behalf of the Company.

5. The court noted that the determination of partnership and liability should occur during trial, with disputed facts requiring evidentiary support. The burden of proof lay with the petitioner to establish his defense, and mere denials were insufficient at this stage.

6. Considering the evidence presented, including a letter indicating payment commitments and partnership documents, the court found that the summoning order and subsequent notice were valid. The petitioner's plea lost significance in light of the documented commitments made on behalf of the Company.

7. The court concluded that the summoning order and notice did not warrant interference under Section 482 Cr.P.C., dismissing the petition. The judgment highlighted the importance of evidentiary support in determining liability and partnership issues, emphasizing the need for a trial to resolve disputed facts conclusively.