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TMI Blog2025 (3) TMI 736X X X X Extracts X X X X X X X X Extracts X X X X ..... eques, and had also filed Form No. 32 with the Registrar of Companies prior to the issuance. Based on these facts, this Court had concluded that since the petitioner had resigned well in advance of the cheques being issued, he could not be held liable under Section 138 of the NI Act. However, in the present case, it is undisputed that the Petitioner's resignation occurred after the cheques in question were issued, with both his resignation and Form No. 32 bearing the date of 15th May, 2012, which is subsequent to the issuance of the cheques dated 12th May, 2012 and 14th May, 2012. The Petitioner, who is concededly the signatory of the disputed cheques, is liable for the actions of Accused No. 1 under Section 138 read with Section 141 of the NI Act. Conclusion - The Petitioner is admittedly a signatory to the cheques issued to the Respondent for the discharge of Accused No. 1's liability. He was serving as a full-time director of Accused No. 1 at the time of issuance of the cheques in question; and resigned from the company only subsequent to the date of the cheques. There are specific averments regarding the Petitioner's role as the director of Accused No. 1 in the complaint lodg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h July, 2012. 2.3 The Respondent, thereafter, served legal notice dated 07th August, 2012 on the Petitioner as well as other relevant persons associated with Accused No. 1. The Petitioner received the notice on 08th August, 2012, and in response, notified the Respondent of his resignation, providing copies of the resignation letter, its acceptance, and Form No. 32. However, despite the said intimation, the Respondent, while filing the impugned complaint, impleaded the Petitioner as one of the accused, citing his previous role as a director of Accused No. 1. 2.4 Pursuant to the complaint, the Metropolitan Magistrate, vide order dated 22nd September, 2014, summoned the Petitioner for the offence under Section 138 read with Section 141 of the NI Act. Subsequently, on 28th January, 2016, notice under Section 251 CrPC was served on Accused No. 1, along with Accused Nos. 2 and 11, being the signatories of the cheques in question. By the said order, proceedings qua the other accused were dropped, and they were acquitted for the said offence. 2.5 Aggrieved, the Petitioner preferred a revision petition against the aforesaid order. However, the revisional court dismissed the same, finding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the court of ASJ. The revisional court by order dated 31st March, 2018, declined to interfere in the summoning order and framing of notice under Section 251 CrPC. It must thus be clarified that although the impugned order pertains to both the summoning order as well as the framing of notice under Section 251 CrPC, the law on this issue has since been clarified in Expeditious Trial of Cases Under Section 138 of the Negotiable Instruments Act, 1881, In re (2021) 16 SCC 116. wherein the Supreme Court, observed that Section 258 of the CrPC, which empowers the Magistrate to stop proceedings in summons cases, does not extend to complaints filed under Section 138 of the NI Act. Therefore, the Court now proceeds to address the challenge to the revisional order, specifically as to whether the Petitioner could have been summoned for the offence under Section 138 read with Section 141 of the NI Act. 6. The crux of the present dispute arises from the issuance of six cheques, some of which are dated 12th May, 2012, and others 14th May, 2012. The Petitioner asserts that he tendered his resignation from the Board of Directors on 15th May, 2012. Subsequently, when the cheques were presented fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey being the authorized signatory of the said Accused No. l Company requested the Bank to present the following cheques in discharge of the financial liabilities of the accused persons including that of the accused Company due and payable /to the Complainant Bank which are detailed as under:- Sr.No. Cheque No. Date Amount i) 184486 14.5.2012 Rs.50,00,00,000 ii) 184487 14.5.2012 Rs. 66,66,667/- iii) 184488 14.5.2012 Rs. 66,66,667/- iv) 184490 14.5.2012 Rs. 66,66,667/- v) 184491 14.5.2012 Rs. 66,66,667/- vi) 184492 12.5.2012 Rs. 66,66,665/- The aforesaid Cheques are tendered in evidence as Exh. CW- 2/12 to CW-2 /17, respectively. The accused persons further informed the Complainant Bank that they were awaiting funds from other sources and requested the Complainant Bank not to present the aforesaid cheques till the June, end closing of 2012 and they further promised and assured that they would clear the entire dues of the Complainant Company by 30.6.2012 and the Complainant Bank looking into the promises and assurances made by the accused, persons did not present the aforesaid cheques for payment and waited till the end of 30.6.2014 in the hope that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cheque and or the Managing Directors of Joint Managing Director who admittedly would be in charge of the company and responsible to the company for conduct of its business could be proceeded against." Analysing the law, the Court held that that both the Managing Director/Joint Managing Director and the signatory of the dishonoured cheque would be liable under Section 141 of the NI Act, irrespective of lack of specific averments in the complaint. The holding of the Court is as follows: "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 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 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." [Emphasis Supplied] 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esignation as per shown in Form No. 32. In the present case the petitioners are signatory of the dishonoured cheque and the Form No. 32 showing the resignation of the petitioner is after the date of the cheque and in my opinion therefore it shall be the matter of trial to prove if there is any vicarious liability against the petitioner for the offence under section 138 N.I. Act. The judgments relied upon are different on the facts and circumstances of the present case. 12. In these circumstances, I do not find any infirmity or illegality in the order passed by the Ld. MM while summoning the petitioner and framing notice against him. The revision petition is accordingly dismissed. 13. Trial Court record be sent back along with copy of this order. Revision file be consigned to record room." 15. The Court finds no infirmity in the impugned order. The Petitioner is admittedly a signatory to the cheques issued to the Respondent for the discharge of Accused No. 1's liability. He was serving as a full-time director of Accused No. 1 at the time of issuance of the cheques in question; and resigned from the company only subsequent to the date of the cheques. There are specific averments ..... X X X X Extracts X X X X X X X X Extracts X X X X
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