Full Text
Translation output
I'
$-13 & 14 HIGH COURT OF DELHI (i) CRL.M.C. 2992/2012 & Crl.M.A.15767/2012
ABHIJIT BORA Petitioner
Through: Ms.Hetu AroraSethi, Advocate
$-13 & 14 HIGH COURT OF DELHI (i) CRL.M.C. 2992/2012 & Crl.M.A.15767/2012
ABHIJIT BORA Petitioner
Through: Ms.Hetu AroraSethi, Advocate
VERSUS
ECE INDUSTRIES LTD. Respondent
Through: Mr. Dilraj Kumar, Advocate (ii) CRL.M.C. 2993/2012 & Crl.M.A.15770/2012
ABHIJIT BORA Petitioner
Through: Ms.Hetu AroraSethi, Advocate
Through: Mr. Dilraj Kumar, Advocate (ii) CRL.M.C. 2993/2012 & Crl.M.A.15770/2012
ABHIJIT BORA Petitioner
Through: Ms.Hetu AroraSethi, Advocate
VERSUS
ECE INDUSTRIES LTD. Respondent
Through: Mr. Dilraj Kumar, Advocate
Through: Mr. Dilraj Kumar, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
16.12.2013 In the above-captioned two petitions, quashing of criminal complaint No.3262/2011 and criminal complaint No.3261/2011 both under Section 138 of The Negotiable Instruments Act, 1881 relating to dishonor oftwo cheques of^ 1 crore and ? 1.25 crores respectively, is sought on identical grounds and so, with the consent of learned counsel for parties, both these petitions were heard together and by this common order, theyare being disposed of
At^d^ hearing, it was contended by learned counsel for petitioner
CRL.M.C. 2992 &2993 of2012 ~ 2013:DHC:6646 -V'
\ that petitioner had resigned as Director of accused-company on
November, 2010 and the post-dated cheques in question were issued in
December, 2010, which were encashable in April, 2011. To substantiate the aforesaid plea of petitioner being not liable to be prosecuted for the offence in question, attention ofthis Court was drawn to certified copy of
Form-32 and to paragraphs No.12 and 13 of the complaints in question and reliance was placed upon decision in Anita Malhotra v. Apparel
Export Promotion Council and Another (2012) 1 SCC 520 and National
Small Industries Corporation Limited v. Harmeet Singh Paintal and
16.12.2013 In the above-captioned two petitions, quashing of criminal complaint No.3262/2011 and criminal complaint No.3261/2011 both under Section 138 of The Negotiable Instruments Act, 1881 relating to dishonor oftwo cheques of^ 1 crore and ? 1.25 crores respectively, is sought on identical grounds and so, with the consent of learned counsel for parties, both these petitions were heard together and by this common order, theyare being disposed of
At^d^ hearing, it was contended by learned counsel for petitioner
CRL.M.C. 2992 &2993 of2012 ~ 2013:DHC:6646 -V'
\ that petitioner had resigned as Director of accused-company on
November, 2010 and the post-dated cheques in question were issued in
December, 2010, which were encashable in April, 2011. To substantiate the aforesaid plea of petitioner being not liable to be prosecuted for the offence in question, attention ofthis Court was drawn to certified copy of
Form-32 and to paragraphs No.12 and 13 of the complaints in question and reliance was placed upon decision in Anita Malhotra v. Apparel
Export Promotion Council and Another (2012) 1 SCC 520 and National
Small Industries Corporation Limited v. Harmeet Singh Paintal and
ORDER
To controvert the aforesaid stand taken on behalf of petitioner, learned counsel for respondent had drawn the attention of this Court to Form-32 to point out that petitioner was whole-time Director and Form- 32 was submitted in June, 2012 and in view of the averments made in paragraph No.2 of the complaints in question, it cannot be said that petitioner is not vicariously liable for the commission of the offence in question. Attention ofthis Court was also drawn to copy of 38^^ Annual Report of the year 2011-12 of accused-company to point out that even in December, 2012", petitioner is shown to be one ofthe Executive Directors of accused-company. Thus, it is submitted on behalf of respondent that the issue raised in these two petitions is triable one as respondent's statutory notice was not even replied by petitioner. Upon hearing both the sides and on perusal of the complaints in question, the certified copy of Form-32, the material on record and the decisions cited, I find that the principle of vicarious liability in proceedings under Section 138 of The Negotiable Instruments Act, 1881, CRL.M.C. 2992 & 2993 of2012 Page 2 tr succinctly spelt out in National Small Industries (supra) and reiterated in Anita Malhotra (supra), requires that the role of Director of accusedcompany needs to be spelt out. In the instant matters, certified copy of Form-32 spells out the role of petitioner as whole-time Director. Whether petitioner had resigned as Director of accused-company when the cheques in question were dishonoured, is a fact which cannot be pre-judged while exercising jurisdiction under Section 482 of Cr.P.C. as Fonn-32 is yet to be legally proved. However, upon a bare perusal of Form-32 in question, it cannot be said that no case for proceedings against petitioner is made out. Hence, no ground to quash the proceedings arising out of complaints in question made out. In view of what is observed above, both these petitions are dismissed while expressing no opinion on merits lest it may prejudice either side at trial.
(SUNIL GAUR)
JUDGE
DECEMBER 16,2013 s
DECEMBER 16,2013 s