9911796707
TMI Blog2021 (4) TMI 285X X X X Extracts X X X X X X X X Extracts X X X X ..... their business requirement and the material was promptly supplied as per demand. It is alleged that against supply of steel scrap against invoice bearing Nos.2080000493 and 2080000494 for a sum of Rs. 1,14,62,732.27/- [as per agreed rate of Rs. 23131.80 /MT dated 23.08.2013], payment was to be made immediately after supply of material. A few payments against these invoices were received, however, as per accounts maintained by the complainant-company, an amount of Rs. 80,00,000/- along with interest @24% was shown due towards accused-company as on 08.05.2017. 3. It is alleged that against discharge of afore-noted due payment, the accused-company had issued cheque bearing No.000531 dated 27.12.2016 for Rs. 80,00,000/-, drawn on Bank of Baroda, branch Gandhi Nagar, Ghaziabad while assuring the complainant-company that the same shall be honoured as and when presented in the bank. However, upon presentation of the cheque, the same was returned by the bank vide Memo dated 27.03.2017 with the remark "Account Blocked". The complainant sent a legal Demand Notice dated 12.04.2017 to the accused company and it was served upon the accused-company and the petitioner on the same day. 4. On 06. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Demand Notice dated 12.04.2017 the complainant has only stated "that you the notice (sic Noticee) being the directors and authorised signatory of notice company are responsible for day to day business affairs of the notice (sic Noticee) company and has signed the cheque in question under the present notice", however, it is nowhere stated as to who had signed the impugned cheque on behalf of the accused-company. It is further submitted that in reply to the aforesaid legal Demand Notice dated 12.04.2017, accused-company has clearly stated that petitioner and the other named person are neither the Directors nor authorized signatories to operate the bank account and that the cheque in question is forged and fabricated and also that a blank cheque leaf had been stolen by the complainant in collusion with employee, in respect of which a police complaint was also made at police station Vijay Nagar, Ghaziabad on 20.4.2017. 9. It is further submitted that while passing the impugned summoning order dated 31.08.2017, the learned trial court has not taken into consideration the fact that in the complaint in question, complainant has failed to establish as to how petitioner was responsible f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2021 with the remark "Account Blocked" and thereafter, Legal Demand Notice dated 12.04.2017 was served upon the petitioner. 13. Learned counsel for respondent No.2/complainant submitted that the pleas raised by the petitioner in this petition as to whether he was authorized representative of respondent No.3 or its employee and whether respondent No.3 had sent a reply to the Legal Demand Notice or whether the cheque in question is a stolen cheque or has been issued against a pending debt or liability, are questions which can only be unfurled in full-fledged trial, and therefore, this petition is liable to be dismissed. 14. In rebuttal, it was submitted that petitioner had joined respondent No.3 company on 01.07.2015, whereas the disputed transactions between respondent No.2 and respondent No.3 companies pertain to the year 2013 and also that the document (Annexure-A) from the MCA website wherein petitioner's name is listed as the Authorized Representative of respondent No.3/company, pertains to the year ending March, 2019 and not August, 2013, wherein too petitioner has been mentioned as Authorized Signatory and not the Director of respondent No.3 -company. 15. Lastly, it was re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received summons, he appeared before the learned trial court seeking discharge in the complaint in question. Petitioner has also stated that he had joined the services of accused-company on 01.07.2015 and the record of Registrar of Companies (ROC) pertains to the year the year 2019 cannot be taken into consideration. He has also taken the plea that he is neither the Director nor is the person managing day to day affairs of the accused-company and also that despite opportunity given by the trial court, complainant has not been able to bring any documents on record to establish this fact and had even failed to file reply to his application seeking discharge and in the absence thereof, the impugned dismissal order passed by the trial court cannot sustain in the eyes of law. 20. Petitioner has further pleaded that he is not the signatory of the cheque in question and has rather stated in his application before the trial court that the said cheque leaf was stolen from the office of accused-company by the complainant with the connivance of some worker and in this regard a complaint was lodged in May, 2017. 21. A bare perusal of chain of events, as stipulated in the complaint in questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner as contemplated under Sections 138 and 141 of Negotiable Instruments Act and also whether continuation of the proceedings against the petitioner, who claims to be neither the signatory of the cheque nor the person in charge of the accused-company, is proper? 24. The Hon'ble Supreme Court in N. Rangachari v. BSNL (2007) 5 SCC 108 has held as under:- "27. We think that, in the circumstances, the High Court has rightly come to the conclusion that it is not a fit case for exercise of jurisdiction under Section 482 of the Code of Criminal Procedure for quashing the complaint. In fact, an advertence to Sections 138 and 141 of the Negotiable Instruments Act shows that on the other elements of an offence under Section 138 being satisfied, the burden is on the Board of Directors or the officers in charge of the affairs of the company to show that they are not liable to be convicted. Any restriction on their power or existence of any special circumstance that makes them not liable is something that is peculiarly within their knowledge and it is for them to establish at the trial such a restriction or to show that at the relevant time they were not in charge of the affairs of the Compa ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
