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TMI Blog2023 (8) TMI 1311X X X X Extracts X X X X X X X X Extracts X X X X ..... and 142 of Negotiable Instruments Act, 1881 ('NI Act') arraigning him as an accused, by the complainant/respondent no. 2, as well as setting aside of orders in these cases by way of which the applications seeking discharge filed by the petitioner before the concerned Magistrate were dismissed. 2. This judgment shall govern the disposal of all the abovementioned petitions filed under Section 482 and 483 of the Code of Criminal Procedure, 1973 ('Cr.P.C.'). 3. Brief facts of the case, as disclosed from the complaint filed under Section 138 read with Section 141 of NI Act, are that the complainant company was engaged in the business of rendering financial services in India as a registered non-banking financial company, and the accused company namely M/s. Silverstar Fashions Private Limited was engaged in the business of manufacturing and exporting ready-made garments. It was stated that the accused company had approached the complainant in March, 2015 with a request to advance loan/financial assistance to meet its working capital requirements to cater to the purchase order received by the accused company and the accused persons namely Ravi Dhingra and Bharat Makkar, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strate-02, Patiala House Courts, New Delhi had summoned the accused persons, after which, the present petitioner had moved applications seeking discharge/dropping of proceedings against him in all the complaint cases. 5. Aggrieved by the orders dated 23.11.2019, dismissing the application seeking discharge in all five complaint cases, the petitioner has preferred the petitions i.e. CRL. M.C. No. 24/2020, 1335/2020, 1336/2020, 1334/2020 and 1366/2020 seeking setting aside of such orders. Further, petitions i.e. CRL. M.C. No. 5965/2022, 5981/2022, 5982/2022, 5980/2022 and 5975/2022 have been filed seeking quashing of the summoning orders issued against the petitioner in the five complaint cases instituted by the complainant which are pending before the Court of learned MM. 6. Learned Senior counsel for the petitioner argues that summoning of an accused in a criminal case is a serious matter and the criminal law cannot be set into motion in a routine manner. It is argued that the petitioner in the present case was not in charge of or responsible for the conduct of the business of the accused company at the time when the offence had been committed and thus he could not have been made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay and the bank return memo is dated 23.08.2016 whereas as per records of ROC, it was informed about the resignation of the petitioner on 23.08.2016. It is also stated that the petitioner in connivance with other directors had obtained loan on the basis of forged purchase orders and had diverted the funds to his another company including M/s. Loop and Style Exports Pvt. Ltd. where his son is one of the directors and had siphoned off the amount obtained from the complainant company. It is also submitted that petitioner, his son, his wife and the companies owned by the petitioner had given a personal guarantee on behalf of accused company i.e. M/s. Silverstar Fashion Pvt. Ltd. on 27.03.2014 which is even prior to availing loan from the complainant. It is argued that in March, 2015 the petitioner along with co-accused Bharat Makkar, representing the accused company, had approached the complainant with a request to advance financial assistance to meet working capital requirements in order to cater to the purchase orders received by the accused company and the complainant company acting on the representation and warranties of the petitioner, had entered into agreements and had sanctione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 141. Offences by companies. - (1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence: Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter. (2) Notwithstanding anything 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a Director in such cases..." 12. In S.P. Mani & Mohan Dairy v. Dr. Snehalatha Elangovan 2022 SCC OnLine SC 1238, the Hon'ble Apex Court had explained the provision of Section 141 of NI Act in the following manner: "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 such officer irrespective of his or her being or not being actually in charge of and responsible to the company in the conduct of its business. Thus, the important and distinguishing feature in sub-section (1) is the control of a responsible person over the affairs of the company rather than his holding of an office or his designation, while the liability under sub-section (2) arises out of holding an office and consent, connivance or neglect. While all the persons covered by sub-section (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he was the Director of the accused company when the cheques had been issued on 22.08.2022 and he had tendered his resignation on the very same day in the evening and some of the cheques in question had got dishonored on 23.08.2022. The respondent no. 2 contends, on the basis of records of the Registrar of Companies, that the resignation was communicated to the ROC on 23.08.2022, only after the cheques had got dishonored. Be that as it may, this Court also takes note of the fact that except Form DIR-11, nothing has been placed on record to show that after the resignation was forwarded to the accused company by the petitioner, any Board Meeting had taken place or any Board Resolution was passed to accept his resignation. As regards the reliance placed on behalf of petitioner on decision of Hon'ble Apex Court in Harshendra Kumar D. v. Rebatilata Koley & Ors. (2011) 3 SCC 351, this Court notes that the same is distinguishable on the facts and circumstances as in that case, the petitioner therein had resigned two months prior to the issuance of cheque and the petitioner had placed on record several documents such as his letter of resignation sent to the company, the board resolution of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be kept in mind by the Court concerned. *** (g) The power of quashing should be exercised very sparingly and where, read as a whole, the factual foundation for the offence has been laid in the complaint, it should not be quashed... * * * * 47. Our final conclusions may be summarised as under:- *** d.) If any Director wants the process to be quashed by filing a petition under Section 482 of the Code on the ground that only a bald averment is made in the complaint and that he/she is really not concerned with the issuance of the cheque, he/she must in order to persuade the High Court to quash the process either furnish some sterling incontrovertible material or acceptable circumstances to substantiate his/her contention. He/she must make out a case that making him/her stand the trial would be an abuse of process of Court." (Emphasis supplied) 18. In this Court's opinion, the material placed on record by the petitioner is not sterling incontrovertible material or unimpeachable material to show that petitioner was not involved either in day-to-day activities of the company or had no role in issuance of cheque in question or its dishonoring. 19. Accordingly, the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X
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