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TMI Blog2017 (12) TMI 1100X X X X Extracts X X X X X X X X Extracts X X X X ..... notice - The aforesaid facts on record only indicates liability if so there is, it could be of civil liability and not criminal liability qua against the petitioner, which could be put into motion under Section 138 read with Section 141 of the Negotiable Instruments Act. The impugned summoning order dated 10.12.2010 qua against the present petitioner is bad and the same is set aside - petition allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... Fifty Seven Thousand Seventy Three Only) and vide return memo dated 30.10.2010 in respect of Cheque No. 090760 dated 15.10.2010 of ₹ 3,01,125/- (Three Lakhs One Thousand One Hundred Twenty Five Only), with the remarks "Payment Stopped". 6. Thereafter, the respondent No.1/complainant issued a legal notice dated 12.11.2010 against the accused persons (including the petitioner herein) which was duly served upon them. However, when the accused persons failed to make the payment despite expiry of 15 days notice period, the respondent No.1/complainant was constrained to filed a complaint under Section 138 of NI Act in the Court of the Chief Metropolitan Magistrate, Tis Hazari Court, Delhi against the accused persons including the petitioner herein. 7. Consequently, the learned Metropolitan Magistrate after going through the complaint, documents attached with it and testimony of the respondent No.1/complainant vide order dated 10.12.2010 took cognizance of the offence punishable under Section 138 of the NI Act and issued summons to the accused persons (including the petitioner herein) in CC No. 707/RN/10. 8. Aggrieved from the said order the petitioner filed a petition being CRL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 approached the respondent No.1 for the purchase of material, payment advices and entered into all the transactions with the respondent No.1. They issued two cheques i.e. Cheque No. 090759 dated 10.10.2010 and Cheque No. 090760 dated 15.10.2010 in favour of the respondent No.1 and the petitioner along with other accused gave assurances that the cheques would be encashed. Also, it was specifically stated in the complaint that the petitioner along with the other accused are the directors/authorized representative of the accused No.1 Company and in actual control of the business and have done the entire business transactions with the respondent No.1. 13. The learned counsel for the respondent No.1 has further submitted that the petitioner has mislead this Court by not disclosing the fact that the notice under section 251 Cr.P.C. has already been framed by the learned Metropolitan Magistrate on 21.08.2012 and even the statement of the accused under Section 313 Cr.P.C. has been recorded on 19.11.2013, and still the petitioner has made incorrect statement and took liberty from this Court to take all the pleas before the learned Metropolitan Magistrate at the time of framing of notice u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court in the judgment reported as National Small Industries Corporation vs. Harmeet Singh Paintal & Anr.; (2010) 3 SCC 330 has observed that only those persons who were in charge 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. A Director, who was not in charge of and was not responsible for the conduct of the business of the Company at the relevant time, will not be liable for the offence under Section 141 of the Negotiable Instruments Act. The relevant para of the judgment is reproduce as under:- "13. Section 141 is a penal provision creating vicarious liability, and which, as per settled law, must be strictly construed. It is therefore, not sufficient to make a bald cursory statement in a complaint that the Director (arrayed as an accused) is in charge of and responsible to the company for the conduct of the business of the company without anything more as to the role of the Director. But the complaint should spell out as to how and in what manner Respondent No. 1 was in-charge of or was responsible to the accused Company for the conduct of its business. This is in consonan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, that, the two cheques, i.e., cheques Nos. 090759 and 090760, in question were, issued by the petitioner-Mr. Nitin Chawla and Mr. A.K. Chawla/accused No.3, directors of the Company, i.e. M/s Catmoss Retail P. Ltd. 25. The offence under Section 138 read with Section 141 of the Negotiable Instruments Act is committed when actus reus specifies the consequence, 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. 26. The instant petition is arising from the complaint petition filed by the respondnent No.1/complainant being CC. No. 707/RN/10 under Section 138 of the Negotiable Instruments Act, wherein it was alleged by the respondent No.1 that the two cheques in question were issued by the accused No.2 (petitioner herein) and accused No.3. 27. The Form-32 of the Company, i.e. M/s Catmoss Retail P. Ltd., placed on record shows that the accused No.3- Mr. A. K. Chawla became the Managing Director of the Company on 01.07.2010 and the cheques in question were issued on 10.10.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a case where the learned Magistrate has not gone into the depth of From-32, where the petitioner i.e., Mr. Nitin Chawla, 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 as the cheques in question were issued by the Managing Director, i.e. Mr. A.K. Chawla, of the Company and subsequently, there was no occasion of actus reus on the part of the petitioner. It is because of this reason he took the defence to the notice under Section 251 Cr.P.C. dated 21.08.2012 that he does not owe any liability as alleged in the said notice. 31. The aforesaid facts on record only indicates liability if so there is, it could be of civil liability and not criminal liability qua against the petitioner, which could be put into motion under Section 138 read with Section 141 of the Negotiable Instruments Act. Reliance is placed on the judgment of the Apex Court in the case of Pooja Ravinder Devidasani Vs. State of Maharashtra & Anr.; MANU/SC/1177/2014 and the relevant para is reproduced as under:- "30. Putting the criminal law into m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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