2012 (12) TMI 310 - HC - Companies Law

Summoning the Accused u/s 138 of Negotiable Instruments Act 1881 - held that - Petitioner is in charge of and responsible for the conduct of the business of the company however there is considerable delay in approaching court. Normally once the criminal proceedings have been initiated court is exercise of its inherent jurisdiction would be reluctant to interference at an interlocutory stage. petitioner is permitted to withdraw the petition and raise contention as raised herein at the appropriate stage before the learned Magistrate itself. However personal appearance of the petitioner on each date of hearing in the facts and circumstances shall remained dispensed with and he shall be permitted to appear through his counsel subject to the condition that the petitioner shall file an undertaking that his counsel shall appear on each date of hearing and he shall have no objection if the evidence of the complainant is recorded in his absence and he shall appear on such day/days when his presence is required by the learned trial Magistrate for which intimation shall be given to the counsel appearing from him - The criminal misc. petition is dismissed as withdrawn.

Summary

Issues:
1. Challenge to summoning order under Section 138 of the Negotiable Instruments Act, 1881.
2. Petition to quash the complaint and summoning order.
3. Application for discharge under Section 245 Cr.PC.
4. Petition to quash the complaint, summoning order, and dismissal order under Section 482 Cr.PC.

Analysis:
1. The complainant filed a criminal complaint under Section 138 of the Negotiable Instruments Act, 1881 against the accused. The trial Magistrate summoned the accused to face the trial based on preliminary evidence. The accused previously filed a petition to quash the complaint and summoning order, which was dismissed by a Coordinate Bench of the High Court due to considerable delay in approaching the court. The accused was permitted to raise contentions before the trial Magistrate and the petition was dismissed as withdrawn.

2. Subsequently, the accused filed an application to discharge them under Section 245 Cr.PC, which was dismissed by the trial court. Unsatisfied, the accused filed a second petition to quash the complaint, summoning order, and dismissal order under Section 482 Cr.PC. The High Court, after considering the arguments and the record, found no merit in the petition.

3. The High Court noted that the argument that the complainant did not specifically plead how the petitioner was responsible for the company's day-to-day functioning was devoid of merit. The complaint contained direct allegations that the accused were responsible for the company's conduct of business and issued the impugned cheques. Section 141 of the NI Act holds individuals responsible if they were in charge of the company's business at the time of the offence.

4. The court emphasized that the complaint alleged that the accused were in charge and responsible for the company's business, making it premature to discharge them at this stage. The trial Magistrate had dismissed the application under Section 245 Cr.PC with valid reasons, which the High Court found appropriate. Since no legal infirmity was pointed out, the impugned orders were maintained. The petition was dismissed due to lack of merit in challenging the orders.

5. The High Court concluded that no other significant points were raised by the petitioner, and based on the reasons provided, the petition was dismissed as there was no merit in challenging the impugned orders under Section 482 Cr.PC.