Gujarat Oleo Chem Ltd. & Ors. v. State & Anr.

(2009) DLT 415 and another judgment of this Court passed in Crl.M.C. NO. 3781/2009 on 16th December,zX[g.Counsel also submits that the judgment of this Court passed in Crl.M.C. No. 378112009 was between the same parties and the said order was never challenged by the respondents. Counsel for the petitioners further submits that after the said decision of this Court, respondent No.2 had filed various other complaint cases and.in those t- { t' complaint cases respondent No.2 has not impleaded the petitioners. Counsel for the petitioners has drawn attention of this Court to the details of all such, cases, enumerated in para (vii) of the grounds of these petitions. Based on the above submissions, counsel for the petitioners submits that the pelitioners have no objection if the respondent No. 2 may continue with these complaint cases against Mr. Santosh Dheeraj pathak, ' who has signed the cheques in question in his individual capacity. Mr. Jayant K. sood, counsel appearing for respondent No.2 seeks time to file reply. Counsel also submits that so far the case of Manish Kant Aggarwal is concemed, aggrieved party had already filed sl-p bearing No. 1 8720/200gin the Hon'ble Supreme court. I have heard learned counsel for the parties. Indisputably, the cheques in question were signed by Mr. Santosh Dheeraj Pathak, who happens to be the chairman a'd Managing Director of \4/s Gujarat oreo chem Limited. on a perusar of the photocopy of the cheques piaced on record, it is quite manifest that these cheques have not been signed on behalf of the said company. This court in the case of Manish Kant Aggarwal vs N.A.G.M.F. of India, has already taken a view that the combined reading of Section 138 and Seition 141 of Negotrabie,rf t\,y/ Instpments Act, 1881 would clearly show that a drawer for such complaints based on the dishonoured cheques necessarily has to be a company itself and thereafter, the other question would arise as to which of the directors and other functionaries of the company were responsible for the conduct and affairs of the business of the company. It was also held that the prosecution against the Directors and other beneficiaries of the company would arise only when the company itself is the drawer of such dishonoured cheques and only then vicarious liability of the company would shift on such directors and other functionaries of the company and not otherwise. The said view taken by this Court has already been reiterated by the coordinate Bench of this Court in Crl. M.C. No. 3781/2009. ' In the background of the said legal position, this Court cannot take any different view as has earlier been taken by this Court in the said two judgments. The Cjourt is also not oblivious of the fact that the said order dated 16th December,2009 was not challenged by the respondent and rather thereafter, respondent No. 2 had filed various complaints only against Mr. Santosh Dheeraj Pathak in his individual capacity without irnpleading itr. petitioners herein. In the light of the above, these present petitions are allowed. r- {A The order of 'summoning dated 15.12.2008, 2r.7.200g, 16.10.2007, 26.9.2008,22.10.2009,7.r.2010 and 3.8.2009, passed against the petitioners are quashed. However, complaints filed by the respondents shall continue qua Santosh Dheeraj Pathak.

KAILASH GAMBHIR. J MAY 29,2013 rkr {