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TMI Blog2016 (11) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... filing of the complaint petition CC. No. 2011/1/14 by the respondent to attract the provisions of Section 138 read with Section 141 of the Negotiable Instruments Act. The aforesaid facts on record only indicates liability if so there is, it could be of civil liability and not criminal liability, which could be put into motion under Section 138 read with Section 141 of the Negotiable Instruments Act - CRL.M.C. 4919/2015 and Crl.M.A.No.17611/2015 & CRL.M.C. 4028/2015 and Crl.M.A.No.14341/2015 - - - Dated:- 25-10-2016 - MR. I.S.MEHTA J. Petitioners Through: Ms. Meenakshi Jyoti, Advocate. Respondents Through: Mr. Mehul Gupta, Advocate for R-2. I.S. MEHTA, J. 1. The present petitions are arising out of the impugned summoning order passed by MM(C-02) Delhi in CC No. 2011/1/14 dated 28.01.2015. The present petitioners aggrieved from the impugned summoning order passed in CC No. 2011/1/14 dated 28.01.2015 preferred to file two separate petitions mentioned herein above, i.e., CRL.M.C. 4919/2015 and CRL.M.C. 4028/2015. 2. The brief facts stated in the petitions are that a complaint under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectively and both are connected matters. The petitioners in both the petitions are present Directors of the Company, i.e., M/s. Meenakshi Saree Centre Private Limited. The learned counsel for the petitioners further submits that the petitioners on the date of the issuance of the cheques in question were not the Directors of the Company. In this regard, she has placed reliance on copy of Form-32 obtained from ROC, which is placed on record. 9. The learned counsel for the petitioners further submits that the allegation that the cheques were issued by the petitioners on 20.09.2014 is a false allegation, as on the said date the petitioners were not the Directors of the said Company and were not looking after the business on day-to-day basis. She further submits that it is because of this reason that the petitioners were unaware about the issuance of the cheques in question. She further submits that if at all any liability arises because of the act of any other Director of the Company then the same falls within the meaning of civil liability qua against the present petitioners. She further submits that on the date of the issuance of the cheques in question, there was no existing liab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esh Aggarwal Vs. State, 171 (2010) DLT 51, contends that it is a settled law that unless and until notice under Section 251 Cr.P.C. is framed against the accused by the concerned Court, no quashing of the complaint under Section 138 of the Negotiable Instruments Act can be sought by the accused. He further submits that admittedly in the present case, notice under Section 251 Cr.P.C. has not yet been framed against the petitioners and hence they are estopped from approaching this Court seeking quashing of the complaint. 14. On the contrary, the learned counsel for the petitioners in the present petitions has stated that M/s. Meenakshi Sarees Private Limited and M/s Meenakshi Saree Centre Private Limited are two separate legal entities and Notice issued is qua against M/s. Meenakshi Sarees Private Limited and its Directors. M/s. Meenakshi Saree Centre Private Limited has never purchased sarees as alleged. M/s. Meenakshi Saree Centre Private Limited does not owe any sum to the respondent No.1, i.e., M/s Deepika Sarees Private Limited, and further denied any cheques having been issued by the deceased-Mr. Vineet Aggarwal. The petitioners were not the Directors of the Company on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the person should be in overall control of the day to day business of the Company. 18. The instant petitions are arising out of the impugned summoning order dated 28.01.2015 passed by the Court below in CC No. 2011/1/14 which is reproduced as under:- CC No. 2011/1/14 28.01.2015 Present: AR of the complainant in person along with Ld. counsel. The form-32 of the accused no.1 company has been submitted as per which the accused no. 2 and 3 are shown to be the Directors of the accused no. 1 company. PSE has already been led in this matter. Pre-summoning evidence by way of affidavit has been tendered. Arguments have been heard upon the point of summoning of the accused. After going through the complaint, documents attached with it and testimony of the complainant. I am of the view that prima facie offence U/s 138 of Negotiable Instruments Act is made out. All the statutory requirements have been complied with. Case filed is within the period of limitation. Let the accused be summoned on filing of PF, RC and Speed Post. Accused be served through affixation also in terms of section 65 Cr.P.C.. Now, to come up on 30/04/2015. Steps to be taken within two weeks ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s acknowledged by Mr. Vineet Aggarwal Managing Director of the Company and in order to execute the said liability he issued two cheques vide cheque No. 414228 and 565425, dated 20.09.2014, amounting to ₹ 12 Lacks and ₹ 15 Lacks respectively, drawn on the current account of M/s. Meenakshi Saree Centre Pvt. Ltd. in ING Vysya Bank, Chandni Chowk branch, Dariba Kalan, Delhi. 22. Further, as per para 11 of the complaint petition the said Managing Director, i.e., Mr. Vineet Aggarwal, has expired on 25.09.2014. The said paras 8 and 11 of the complaint petition are reproduced as under: 8. That the accused failed and neglected to pay the said outstanding principal amount and later on Sh. Vineet Aggarwal, Managing Director of the Accused company approached the Complainant and requested Complainant to grant loan of the said amount which would incur interest @ 12% p.a.. He further promised to liquidate the said amount within a short time and till such time, it would carry interest. The said proposal came through broker Sh. Mukut Bihari earlier also. The Complainant agreed to treat the said outstanding amount as loan to the Accused company. Sh. Vineet Aggarwal for and on beh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is not enough that the person had engaged in voluntary conduct with relevant state of mind. The commission of the offence must be proved that the consequence was caused by some conduct on his/her part to constitute substantial cause for arising its consequences. 27. The instant petitions are arising from the complaint petition filed by the respondnent, i.e., M/s Deepika Sarees Private Limited, in CC. No. 2011/1/14 under Section 138 read with Section 141 of the Negotiable Instruments Act, wherein it was alleged by the respondent that the two cheques in question were issued by the Managing Director, i.e., Mr. Vineet Aggarwal, of the Company, i.e., M/s Meenakshi Saree Private Limited, on 20.09.2014. Subsequently, the said Managing Director-Mr. Vineet Aggarwal has admittedly died on 25.09.2014. 28. The Form-32 of the Company, i.e., M/s Meenakshi Saree Centre Private Limited, shows that one of the petitioners, i.e., Ms. Richa Aggarwal, became the Additional Director of the Company on 22.09.2014 and the cheques in question were issued two days prior to her appointment by the Managing Director, i.e., Mr. Vineet Aggarwal, who died on 25.09.2014 after issuance of the said cheques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is a case where the learned Magistrate has not gone into the depth of From-32, where the petitioner i.e., Ms. Richa Aggarwal, was not even an existing Director of the Company at the time of issuance of the said cheques in question. The learned Magistrate has not gone into the depth of the cause of action arisen qua against the petitioner, i.e., Ms. Mohini Aggarwal, as the cheques in question were issued by the deceased Managing Director, i.e., Mr. Vineet Aggarwal, of the Company on 20.09.2014 and subsequently, there was no occasion of actus reus on the part of Ms. Mohini Aggarwal. It is because of this reason she had replied to the notice dated 12.11.2014 that she does not owe any liability as alleged in the said notice. 33. There is no other factor or circumstance which could show any change of state of mind of Ms. Mohini Aggarwal after issuance of the cheques in question by the deceased, i.e., Mr. Vineet Aggarwal, till the filing of the complaint petition CC. No. 2011/1/14 by the respondent to attract the provisions of Section 138 read with Section 141 of the Negotiable Instruments Act. The aforesaid facts on record only indicates liability if so there is, it could be of civ ..... 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