9911796707
TMI Blog2023 (5) TMI 323X X X X Extracts X X X X X X X X Extracts X X X X ..... ons Pvt. Ltd.', a Private Limited Company, was having business relations with the accused no. 1 (respondent no. 2 herein) i.e. 'M/s. Aura Creation Exports Private Limited & Ors.', whose directors were accused no. 2 i.e. Tarun Narang (respondent no. 3 herein) and accused no. 3 i.e. Ambika Narang (petitioner herein). The case of complainant was that the accused company had ordered laces and embroidery items of different kind which the complainant had supplied from time to time against the bills, for which payments/part-payments were made by the accused company in due course of business. It is stated that as on 28.02.2018, an amount of Rs. 35,09,844/- was still due for payment by the accused company as per the books of complainant. It is alleged that in order to discharge part liability, the accused company had issued a Cheque bearing no. 825500 dated 30.11.2017 for Rs. 19,29,922/- (Rupees Nineteen Lakhs Twenty Nine Thousand and Nine Hundred and Twenty Two) drawn on Punjab National Bank, Sector-27, Noida Branch, duly signed by accused no. 2 (respondent no. 3). Upon presentation of said cheque by the complainant for encashment with its bank i.e. Citi Bank Ltd., Nehru Place, New Delhi, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel for respondent no. 1 states that petitioner was a director of the accused company, having complete knowledge of the business transactions that used to take place between the complainant and accused company. It is stated that even admittedly, the petitioner was director of the company when the invoices were issued. It is also submitted that the factum of petitioner being a director or not at the time of issuance and dishonor of cheque and the contentions qua the same are a matter of trial and cannot be considered at this stage. 6. The rival contentions of both the parties have been heard and the material on record has been carefully perused. 7. At the outset, it will be appropriate to first refer to Section 138 and 141 of the Negotiable Instruments Act, 1881, which are reproduced as under: "138. Dishonour of cheque for insufficiency, etc., of funds in the account - Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.- For the purposes of this section,- (a) "company" means any body corporate and includes a firm or other association of individuals; and (b) "director", in relation to a firm, means a partner in the firm." 8. The Hon'ble Apex Court in S.P. Mani & Mohan Dairy v. Dr. Snehalatha Elangovan 2022 SCC OnLine SC 1238, while analysing Section 141 of the Act, had observed as under: 26. While the essential element for implicating a person under sub-section (1) is his or her being in charge of and responsible to the company in the conduct of its business at the time of commission of the offence, the emphasis in sub-section (2) is upon the holding of an office and consent, connivance or negligence of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annexed with the present petition, the 'name of the document' mentions 'Form DIR-11-05.12.2017_signed', which prima facie reflects the date of filing the resignation with the MCA as 05.12.2017, which is after issuance of cheque in question. Moreover, admittedly, after the resignation was forwarded to the accused company by the petitioner, no Board Meeting had taken place or no Board Resolution was passed to accept her resignation. As far as reliance placed upon Company Master Data (Annexure A-3) is concerned, the same shows the list of directors where the term of respondent no. 3 has been shown as beginning 23.08.2012 and continuing till date, and the term of another director starts from 07.02.2018. Thus, even perusal of this documents reveals that in place of petitioner, the director who was so appointed by the accused company was on 07.02.2018 whereas petitioner claims to have resigned in October, 2017. 11. Considering the proximity of time in alleged resignation of the petitioner and issuance of cheque in question and its dishonor, the date of appointment of new director in place of present petitioner, absence of any board resolution to strengthen the case of petitioner and in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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