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TMI Blog2020 (12) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... the date, time and place of the meetings with the petitioner were mentioned either in the complaint filed under Section 138 read with Section 142 of the N.I. Act or in the pre-summoning evidence. Even in the present proceedings, only written submissions have been filed but no reply has been filed by the complainant company either specifically denying the petitioner s stand or giving any further details qua the petitioner. A combined reading of the legal notice, the complaint as well as the pre-summoning evidence would show that in spite of the aforementioned specific stand taken on behalf of the petitioner, no additional averment has come detailing the role of the petitioner either in the complaint or in the pre-summoning evidence. Admittedly, the present petitioner neither signed the cheque in question nor signed nor witnessed the Distributorship Agreement. In fact, it has not even been averred that the petitioner was even present at the time of signing the agreement. The person who has signed the cheque in question and the Distributorship Agreement i.e., Krishan Gopal Goyal (husband of the petitioner) as well as the company i.e., M/s Beyond Tele Private Limited have also been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of M/s Beyond Tele Private Limited as well as its directors was also sent. Simultaneously, M/s Beyond Tele Private Limited also issued a legal notice through its director Krishan Gopal Goyal to the complainant company and its directors claiming that an amount of ₹ 16,53,992/- was due to them. Subsequently, an Insolvency Petition under Section 9 of the Insolvency and Bankruptcy Code was also filed against the complainant company before the National Company Law Tribunal. 3. Mr. Praveen Suri, learned counsel for the petitioner has assailed the impugned order on the ground that the same was passed by the trial court without due application of mind. He submitted that the impugned cheque was in fact towards security and not meant towards discharge of any legal liability. He also submitted that though the present petitioner is a director but not incharge of day-to-day affairs of the company as she was not an active director. He has referred to the legal notice, the complaint as well as the pre-summoning evidence filed by way of an affidavit by the complainant company to submit that no specific allegations have been levelled against the present petitioner which satisfy the ingredi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er:- 9. Whether the cheque in question was issued towards the security and not towards any debt or liability is a matter of defence which could be determined in the trial on the petitioner adducing his evidence. 10. At this stage, I deem it profitable to refer to the decision of the Supreme Court in HMT Watches Limited v. M.A. Abida Another reported as (2015) 11 SCC 776, where it was held as follows :- 10 .Whether the cheques were given as security or not, or whether there was outstanding liability or not is a question of fact which could have been determined only by the trial court after recording evidence of the parties. In our opinion, the High Court should not have expressed its view on the disputed questions of fact in a petition under Section 482 of the Code of Criminal Procedure, to come to a conclusion that the offence is not made out. The High Court has erred in law in going into the factual aspects of the matter which were not admitted between the parties. The High Court further erred in observing that Section 138(b) of the NI Act stood uncomplied with, even though Respondent 1 (accused) had admitted that he replied to the notice issued by the complain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. 34.3. In the facts of a given case, on an overall reading of the complaint, the High Court may, despite the presence of the basic averment, quash the complaint because of the absence of more particulars about the role of the Director in the complaint. It may do so having come across some unimpeachable, incontrovertible evidence which is beyond suspicion or doubt or totally acceptable circumstances which may clearly indicate that the Director could not have been concerned with the issuance of cheques and asking him to stand the trial would be abuse of process of court. Despite the presence of basic averment, it may come to a conclusion that no case is made out against the Director. Take for instance a case of a Director suffering from a terminal illness who was bedridden at the relevant time or a Director who had resigned long before issuance of cheques. In such cases, if the High Court is convinced that prosecuting such a Director is merely an arm-twisting tactics, the High Court may quash the proceedings. It bears repetition to state that to establish such case unimpeachable, incontrovertible evidence which is beyond suspicion or doubt or some totally acceptable circumstan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as their authorized distributor and subsequently, at the time when products were provided, they were received/acknowledged by M/s Beyond Tele Private Limited through both of its directors and other representatives. It was also stated that M/s Beyond Tele Private Limited, under instructions from both the directors, had issued the impugned cheque. 13. In the reply dated 08.04.2019 to the above legal notice, a specific stand was taken that the present petitioner has nothing to do with the daily affairs of the company i.e., M/s Beyond Tele Private Limited. It was also stated that it was Krishan Gopal Goyal who had been handling the company s business. It was also specifically stated that the petitioner never dealt with the representatives of the complainant company. 14. The complainant company acknowledged the receipt of the reply however, despite coming to know of the aforesaid stand of the petitioner, no specific or further details regarding the date, time and place of the meetings with the petitioner were mentioned either in the complaint filed under Section 138 read with Section 142 of the N.I. Act or in the pre-summoning evidence. Even in the present proceedings, only writte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner) as well as the company i.e., M/s Beyond Tele Private Limited have also been summoned as accused in the complaint case along with the present petitioner. The present petition has been filed only on behalf of the petitioner. 18. In view of the peculiar facts and circumstances of the case, when examined in light of the above exposition of law, this Court is of the opinion that the necessary ingredients required to constitute the offence under Section 141 of the N.I. Act qua the present petitioner are not satisfied. 19. In Pepsi Foods Ltd. and Another v. Special Judicial Magistrate and Others reported as (1998) 5 SCC 749, it was held that summoning an accused person cannot be resorted to as a matter of course and the order must show the due application of mind. 20. Resultantly, I deem it fit to allow the present petition and accordingly, the impugned order only to the extent of summoning the present petitioner for the offence punishable under Section 138 of the N.I. Act is quashed. The petition is disposed of in the above terms along with the pending application. 21. A copy of the judgment be communicated electronically to the concerned trial court. - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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