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TMI Blog2016 (9) TMI 660X X X X Extracts X X X X X X X X Extracts X X X X ..... ) for quashing of order dated 02.09.2014, passed by the learned Sessions Judge, Patiala House Courts, New Delhi whereby the revision petition moved by the petitioner was dismissed, which was filed against the order dated 13.01.2014 passed by the learned Metropolitan Magistrate summoning the petitioner as an accused under Section 319 of the Cr.P.C. Since the present petitions have been preferred against common impugned orders dated 13.01.2014 and 02.09.2014, all the petitions are being decided together. 2. The factual matrix, as per record, is that the respondent/ complainant had filed four complaints under Section 138, 139, 141 and 142 of the Negotiable Instruments Act, 1881 read with Sections 406, 415 and 420 of the IPC against the accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as proceeded only on the basis of averments made in the application. It was further argued that both the Courts below have overlooked the applicability of Sections 138(1)(b), 141 and 142(1) of the Negotiable Instruments Act. It was further argued that issuance of legal notice under Section 138(1)(b) of the Act is a mandatory requirement, but in the present case no such notice was ever issued to the petitioner. The complainant deliberately chose to exclude the petitioner from the array of parties as an accused as the complainant was well aware that the petitioner was not involved in day to day operations of Kingfisher Airlines. It was further argued that the application under Section 319 Cr.P.C. filed by the complainant was barred by limitat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p Singh v. State of Punjab & Ors. (ILC-2014-SC-CRLJan- 5) observed that : "Thus, in view of the above, we hold that power under Section 319 Cr.P.C. can be exercised at the stage of completion of examination in chief and court does not need to wait till the said evidence is tested on cross-examination for it is the satisfaction of the court which can be gathered from the reasons recorded by the court, in respect of complicity of some other person(s), not facing the trial in the offence." 9. In view of the above law laid down by the Hon'ble Apex Court in the case of Hardeep Singh (supra), the examination in chief of a witness is sufficient to term it as an 'evidence', as mentioned in Section 319 Cr.P.C. to summon accused. In the present ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "15. If the requirement that such individual notices to the directors must additionally be given is read into the concerned provisions, it will not only be against the plain meaning and construction of the provision but will make the remedy under Section 138 wholly cumbersome. In a given case the ordinary lapse or negligence on part of the Company could easily be rectified and amends could be made upon receipt of a notice under Section 138 by the Company. It would be unnecessary at that point to issue notices to all the directors, whose names the payee may not even be aware of at that stage. Under Second proviso to Section 138, the notice of demand has to be made within 30 days of the dishonour of cheque and the third proviso gives 15 days ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ...." In National Small Industries Corp. Ltd. v. Harmeet Singh Paintal and Anr. MANU/SC/0112/2010, the Hon'ble Apex Court observed that as per Section 141 of the Negotiable Instruments Act what is required is that the persons who are sought to be made vicariously liable for a criminal offence under Section 141 should be, at the time the offence was committed, incharge of and responsible for the conduct of the business of the company. Only those persons who were incharge of and responsible for the conduct of the business of the company at the time of commission of an offence will be liable for criminal action. The liability arises from being in-charge of and responsible for the conduct of the business of the company at the relevant time whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the respondents. 13. The only part left is that the name of Mr.Vijay Mallya as Chairman and Managing Director of the company was not added in the original complaint filed under Section 138 of the Negotiable Instruments Act. Adding the name of Mr.Vijay Mallya during the proceedings brought forth before the Court below that he was the Chairman and Managing Director of the company which is guilty for dishonouring the cheques in question, would be covered under Section 141 of the Negotiable Instruments Act and cannot be termed as abuse to the process of law as envisaged in Section 482 Cr.P.C. 14. In view of the above facts and circumstances, this Court is of the considered opinion that the order passed by the learned Trial Judge cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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