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TMI Blog2021 (2) TMI 385X X X X Extracts X X X X X X X X Extracts X X X X ..... es dated 27.03.2016, out of which two cheques of higher value were signed by him in the capacity of Director. It is not the case of petitioner that the two cheques in question did not bear his signatures or that at the time of issuance of cheque, he was not the Director of the accused company. The stand taken by petitioner is that at the time of presentation of cheques in bank, he was not on the role of Board of Directors and has placed on record copy of Form DIR 12 in support of his claim, which shows that he had resigned on 11.09.2015. However, this Court cannot lose sight of the fact that he was the Director/Promoter of the accused company at the time of issuance of cheques and was also signatory on two cheques. In the present case, there are specific allegations in the complaint against the petitioner that he was the Director of the accused company, who had acted as a Promoter to induce petitioner to invest his money in the project and allured him of higher returns if money is paid in one instalment and issued the post dated cheques under his signatures, which shows that petitioner was authorised to make financial transaction of the accused company and was therefore, respons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the points raised by the parties are triable issues which can be agitated during trial. Petition dismissed. - CRL.M.C. 1779/2020 & CRL.M.A.12423/2020, CRL.M.C. 1782/2020 & CRL.M.A.12458/2020, CRL.M.C. 1783/2020 & CRL.M.A. 12460/2020, CRL.M.C. 1784/2020 & CRL.M.A. 12462/2020 - - - Dated:- 8-2-2021 - HON'BLE MR. JUSTICE SURESH KUMAR KAIT Petitioner Through: Mr. Madhav Khurana Mr. Kartikeye Dang, Advocates Respondent Through: Mr. Tanveer Ahmed Mir, Mr. Yatharth Dohare Mr. Laksh Khanna, Advocates J U D G M E N T 1. Vide above captioned four petitions, the petitioner seeks quashing of orders dated 16.3.2017, 25.06.2018 and 25.06.2020, passed by the learned Metropolitan Magistrate in complaints under Section 138 of Negotiable Instrument Act, 1881 (NI Act). 2. The above captioned first petition [CRL.M.C.1779/2020] pertains to Complaint No.612304/206. The second captioned petition [Crl.M.C. 1782/2020] pertains to Complaint No. 611606/2016. The above captioned third petition [Crl.M.C. 1783/2020] pertains to Complaint No. 611608/2020. The fourth captioned petition [Crl.M.C. 1784/2020] pertains to Complaint No.612305/2016. Since the subject matter of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AR 046776 ₹ 9,59,428.00 27/3/2016 Sunil Gandhi another AR 046775 ₹ 1,79,675.00 27/3/2016 Sunil Gandhi another AR 046774 ₹ 48,45,600.00 27/3/2016 Petitioner another AR 5. In the complaint, respondent has alleged that in January, 2016, he came to know that the accused company was on the verge of liquidation and in March, 2016, he further came to know that a provisional Official Liquidator has been appointed under the orders of this Court, and finding that the residential project was nowhere near completion, respondent/complainant exercised the Buy Back Option and presented all the four afore-noted post dated cheques issued by the accused company in bank on 25.04.2016 for payment, which were returned unpaid for the reasons as under:- Cheque Number Reasons for return by the bank 046777 Drawers signature to operate account not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .N. Buildwell Pvt. Ltd. was under the control of provisional Official Liquidator appointed under the Orders of this Court and despite respondent/complainant having knowledge of the same, still he exercised the Buy Back Option and presented all the four cheques with his banker, which were returned unpaid. It was emphatically stated by learned counsel for the petitioner that the Demand Notices qua these cheques were also sent to Sh.D.P.Ojha, Official Liquidator and other Directors of M/S A.N. Buildwell Pvt. Ltd., namely, Mr. Michael Brian Collins, Mr. Pawan Bhandari, Mr. Harish Mehrotra, Mr. Vipin Kumar, Mr. Arun Kumar Kotwal, Mr. Rakesh Kumar Nagpal and Mr. Shashi Bhushan Prasad. However, learned trial court has erred in permitting prosecution of petitioner, Mr. Sunil Gandhi and M/S A.N. Buildwell Pvt. Ltd., despite the fact that the Directors of the company were also served with the Demand Notices and petitioner had already resigned from the Board of Directors. 10. It was next submitted by learned counsel for the petitioner that the learned trial court has passed the impugned summoning orders without taking into consideration that at the time of hearing, accused company M/S A.N. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of presentation of the cheque, the company is in liquidation, reliance is placed upon decision in M.L. Gupta Anr. Vs. Ceat Financial Services Ltd., 2006 SCC OnLine Del 1448. 13. Learned counsel for petitioner further submitted that the Official Liquidator, who had taken charge of the company pursuant to order dated 08.03.2016 of this Court, has not yet been discharged and respondent/complainant without deliberately making him party to the complaints, has claimed almost double of the amount invested by him. 14. Learned counsel for petitioner submitted that the Demand Notice dated 19.05.2016 were despatched by respondent on 23.05.2016 and was delivered to the petitioner on 26.05.2016 and the complaints in question were instituted by respondent on 14.07.2016 and so, there is delay of 04 days in filing the complaints. Thus, the complaints filed by the respondent/complainant are barred by limitation as prescribed under Section 138 read with Section 142 of NI Act, which were not even accompanied by applications seeking condondation of delay. Lastly, learned counsel for petitioner submitted that not only the impugned orders dated 16.3.2017, 25.06.2018 and 25.6.2020 deserve t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n question and was responsible for the acts performed in the name of the company and, therefore, liable under Section 141 of the NI Act. Learned counsel for respondent submitted that it is an admitted fact that out of the four cheques in question, two cheques of the higher value, have been signed by the petitioner in the capacity of Director of the Company which clearly establish that petitioner was duly authorized to issue cheques in the course of business transactions of the company. 18. Learned counsel for respondent next submitted that the plea of petitioner that respondent presented the cheques for payment in bank after M/S A.N. Buildwell had gone into liquidation is incorrect, as only Provisional Official Liquidator was directed to be appointed by this Court on 08.03.2016 and in fact, the cheques handed over to the respondent/complainant were posted dated cheques bearing date of 27.03.2016, which could be presented in Bank only thereafter, and were dishonoured and returned by the Bank on 27.04.2016. It was further submitted that only provisional Official Liquidator was appointed by this Court and the company had not gone into liquidation. 19. Learned counsel for respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion were issued by the petitioner, did not even have sufficient balance to honour the legally enforceable debt of the respondent on the date when the cheques were issued or when the petitioner resigned from the company or when the cheques were presented for payment. 23. Learned counsel for respondent/complainant submitted that reliance placed by petitioner upon Hon ble Supreme Court s decision in M.L.Gupta (Supra), is misplaced as in the said case, the complainant had presented the cheque much after winding up of the company whereas in the present case, only publication/citations have been issued which is the first step for liquidation and in fact, till date liquidation has not taken place and rather, revival of the company has been approved by this Court. Learned counsel for respondent/complainant emphasized that petitioner has hatched an elaborate conspiracy with co-accused Sunil Gandhi and committed this premeditated crime by creating financial crunch and pushing the accused company into liquidation, resigning from the Board of Directors and thereafter, reviving it and rejoining as Director. 24. To submit that provisions of Section 446(1) of the Companies Act can have appa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, presented the cheques in bank for payment, which were handed over to him by the accused company under the Buy Back Option. In such a situation, any prudent person would have adopted the similar approach to safeguard his interests, as adopted by the respondent/complainant herein. 29. Different question of facts and law have been raised in these petitions. The foremost question which is required to be determined by this Court is the preliminary objection raised by the petitioner that the complaints in question are barred by limitation. Though impugned orders dated 16.3.2017 and 25.06.2018 simply noted that the complaints filed are within the limitation period, petitioner claims that the Demand Notices were served upon him on 26.05.2016 and the complaints in question were filed on 14.07.2016 and so, there is a delay of 04 days in filing the complaints. On the other hand, the stand of respondent/complainant is that the Demand Notices were served upon the accused company on 30.05.2016 and the complaints were instituted on 14.07.2016, and, therefore, the complaints have been filed within the stipulated period as prescribed under Section 138 of NI Act and there was no requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5) 8 SCC 89 : 2005 SCC (Cri) 1975] binding on us and there is no scope for redefining it in this case. Suffice it to say, that a prosecution could be launched not only against the company on behalf of which the cheque issued has been dishonoured, but it could also be initiated against every person who at the time the offence was committed, was in charge of and was responsible for the conduct of the business of the company. In fact, Section 141 deems such persons to be guilty of such offence, liable to be proceeded against and punished for the offence, leaving it to the person concerned, to prove that the offence was committed by the company without his knowledge or that he has exercised due diligence to prevent the commission of the offence. Sub-section (2) of Section 141 also roped in Directors, Managers, Secretaries or other officers of the company, if it was proved that the offence was committed with their consent or connivance. 31. In view of the above, respondent/complainant was right in affecting service of Demand Notice upon the accused company and its erstwhile and current Directors as well. The accused company has been served on 30.05.2016, therefore, complaints havi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in such cases. (c) The answer to Question (c) has to be in the affirmative. The question notes that the managing director or joint managing director would be admittedly in charge of the company and responsible to the company for the conduct of its business. When that is so, holders of such positions in a company become liable under Section 141 of the Act. By virtue of the office they hold as managing director or joint managing director, these persons are in charge of and responsible for the conduct of business of the company. Therefore, they get covered under Section 141. So far as the signatory of a cheque which is dishonoured is concerned, he is clearly responsible for the incriminating act and will be covered under sub-section (2) of Section 141. 33. In the present case, there are specific allegations in the complaint against the petitioner that he was the Director of the accused company, who had acted as a Promoter to induce petitioner to invest his money in the project and allured him of higher returns if money is paid in one instalment and issued the post dated cheques under his signatures, which shows that petitioner was authorised to make financial transaction of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entation of cheque or whether there was sufficient balance in the account to honour the legally enforceable debt or what shall be petitioner s liabilities after being re-appointed as the Director of the Company, are the questions which cannot be gone into at this stage. 39. A Single Bench of this Court in J.N. Bhatia Ors. Vs. State Anr. 2006 SCC OnLine Del 1597, dealt with bunch of complaints under Section 138 142 of NI Act based on dishonour of cheques. In one of the petition, (Crl.M.C.1162/2003), while taking note of the fact that the petitioner/accused was one of the signatory, dismissed the petition while holding as under:- 53. Though at the time of arguments it was denied that the petitioner had signed the cheques, Trial Court record, which was summoned, shows that he is one of the signatories. When these are the facts appearing, the complaint cannot be quashed under Section 482 of the Code of Criminal Procedure. The disputes raised by the petitioner would form his defence for which evidence would be required and they are disputed questions of fact. This petition is accordingly dismissed. 40. The Hon ble Supreme Court in N. Rangachari (Supra) has als ..... X X X X Extracts X X X X X X X X Extracts X X X X
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