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TMI Blog2023 (9) TMI 1083X X X X Extracts X X X X X X X X Extracts X X X X ..... eque Nos. Date of Issuance of Cheque Legal Notice Date of Appointment of the Petitioner as an Additional Director/Non-Executive as per FORM 32/DIR -12 32 Amit Khanna 1971/2020 05.02.2020 787712 & 206924 24.07.2019 10.12.2019 25.10.2019 33 Rajesh Kumar 1973/2020 05.02.2020 787718 & 206820 24.07.2019 10.12.2019 25.10.2019 34 Rajesh Kumar Gupta 1969/2020 05.02.2020 787711 & 206923 24.07.2019 10.12.2019 25.10.2019 35 Rajat Mehta 1974/2020 05.02.2020 787717 & 206819 24.07.2019 10.12.2019 25.10.2019 36 Rukmani Gupta 9170/2020 01.04.2020 787733 & 787753 24.07.2019 29.04.2020 25.10.2019 37 Vipin Aggarwal 9169/2020 01.04.2020 787730 & 787750 24.07.2019 01.05.2020 25.10.2019 38 Manju Gupta 1935/2020 18.02.2020 787697 & 206910 24.07.2019 10.12.2019 25.10.2019 2. Petitioner is an Indian citizen belonging to the legal profession and practicing before the Courts in Delhi since 2008. 3. Today Homes and Infrastructure Pvt. Ltd (hereinafter referred to as 'accused company') is a private limited company having its registered office at Upper Ground Floor 8-9, Pragati Tower, Rajendra Place, New Delhi - 110008. The accused company was engaged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused persons/company on several occasions demanding for the remainder payment, however to no avail. Resultantly, the complainants served legal notices to the company, the petitioner (arrayed as director of the accused company), the two authorized signatories i.e., Mr. Naveen Thakur and Mr. Rajesh Kumar, one Mr. Gulshan Kumar Gambhir, Ex Director/Key Person/ Major Shareholder and one Mr. RK Gambhir, Major Shareholder, on their addresses, demanding to make payment of Rs. 20,00,000/- to each complainant within 15 days from the date of receipt of the notices. 9. However, since the requisite payment was not done within the time stipulated, various complaint cases were instituted under section 138 NIA whereby the petitioner has been arrayed as Accused No. 3 and has been summoned in the capacity of a Director of the accused company. 10. Meanwhile, the accused company in Company Petition No. (IB)-2130 (ND) 2019 titled "M/s. Dynacon Projects Pvt. Ltd. vs M/s Today Homes and Infrastructure Pvt. Ltd." vide order dated 31.10.2019 came under CIRP and an IRP was appointed after which the accused company ceased to have any control over its bank accounts. 11. Ld. Counsel for the petitioner su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anically and deliberately to rope in the petitioner. g) In the complaint, the role ascribed to the present petitioner is that he along with other accused persons were the Directors as well as Authorized signatories, engaged in the day-to-day business affairs of the accused company. It has been averred that accused Nos. 2 to 5 (wherein petitioner is Accused no. 3) are liable for all acts and deeds done for and on behalf of the accused company towards discharging its liability. It has been generally averred in the complaints that the accused person(s) not only failed to give possession of the flats within the stipulated time, but also failed to honour the cheques issued towards discharging their liability. 13. It is pertinent to mention that the respondents have not appeared before this Court and have not filed their response to the present petitions. 14. I have considered the submissions and perused the records. This court deems it befitting to not delve into the nitty gritties of the various issues propelled by the petitioner. What needs to be ascertained first and foremost by this Court is whether the petitioner was even a director or was handling the day to day affairs of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing persons are considered to be the persons who are responsible to the company for the conduct of the business of the company: (a) the Managing Director(s); (b) the whole-time Director(s); (c) the manager; (d) the secretary; (e) any person in accordance with whose directions or instructions the Board of Directors of the company is accustomed to act; (f) any person charged by the Board with the responsibility of complying with that provision (and who has given his consent in that behalf to the Board); and (g) where any company does not have any of the officers specified in clauses (a) to (c), any Director or Directors who may be specified by the Board in this behalf or where no Director is so specified, all the Directors. It follows that other employees of the company, cannot be said to be persons who are responsible to the company, for the conduct of the business of the company." 19. Further the Hon'ble Supreme Court in National Small Industries Corpn. Ltd. v. Harmeet Singh Paintal, (2010) 3 SCC 330, reiterating the above principles enumerated in SMS Pharmaceuticals Ltd. (supra) and KK Ahuja (supra) and relying on several other judgements on this issue, summarise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court refused to quash the petition moved by the appellant. However the Hon'ble Apex Court while allowing the appeals held that since the appellant was neither a director of the accused company nor responsible or in charge of the day to day affairs of the company at the time when the offence was committed, therefore, vicarious liability cannot be extended to her. The Court held that there was not a shred of evidence on record to show that the offence was committed by the appellant. Thus in absence of any specific averments qua the accused and since the appellant had already resigned from the Directorship of the accused company prior to the issuance of the cheques in question, the Hon'ble Court held that continuing with the criminal proceedings against the appellant would be an abuse of the process of the Courts. 21. This settled law was further crystallised in Sunita Palita & Others vs M/s Panchami Stone Quarry, (2022) 10 SCC 152, wherein the Hon'ble Apex Court set aside the order of the High Court rejecting the quashing petition and allowed the said appeal on the ground that the appellants therein were not the Managing Director or Joint managing Director of the accused comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commission of the offence by the accused Company and their exact role as to how and in what manner they were responsible for the commission of the alleged offence; e. Particulars of the legal notice and status of its service; f. Particulars of reply to the legal notice, if any. 23. It is pertinent to mention that the Courts are bound to follow the directions in letter and spirit. A perusal of the FORM 32/ Form No. DIR -12 makes it manifestly evident that the petitioner was only appointed in the capacity of an Additional Director-Non Executive w.e.f. 25.10.2019 in the accused company. A perusal of the complaint reveals that the subject cheques which came to be disounoured were in fact issued on 24.07.2019, which is prior to the date of appointment of the petitioner as an Additional/Non-Executive Director in the accused company. 24. In view of the above it can be easily inferred that the petitioner could not possibly have been responsible for or in charge of the day to day affairs of the company or its conduct of business at the relevant time when the cheques were issued. Moreover, neither was he a signatory to the cheques in question. It would thus be travesty of justice and ..... 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