Full Text
#14
04.08.2011
Present: Mr.Vinod Kumar, Advocate for the petitioner.
Mr. Rajat Aneja, Advocate for respondent No.1.
None for respondent No.2, who is a formal respondent.
+Crl.M.C. No.2L24l2010 & Crl.M.A. No.8285/20LO(stavl
(ORAL)
This is a petition under Section 482 Cr.P.C. seeking quashing of criminal complaint No.35/Ll2OI0 filed under Section 138 N.l. Act by respondent No.1 against respondent No.2 and its director including the petitioner as also the summoning order dated 06.02.2009 and subsequent orders passed by the learned Metropolitan Magistrate.
Briefly stated, facts relevant for the disposal of this petition are that respondent No.1 filed a complaint under Section 138 N.l. Act against respondent No.2 and others including the petitioner claiming that respondent No.2 company had borrowed a sum of <2 crores from respondent No.1 vide loan agreement dated 19.06,2008 and respondent
No.2 company had issued two post dated cheques bearing Nos.799228 and 799229 both dated 18.09.2008 for respectively drawn on lDBl Bank towards repayment of loan and its interest after deduction of TDS. The cheques, when presented for encashment, were dishonoured and returned with the remarks "payment stopped". This led to issue of a demand notice envisaged under Section
138 N.l. Act on respondent No.2 as well as the petitioner and others. The
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2011:DHC:10809
J demand, however, was not complied with which led to filing of the complaint.
It is submitted on behalf of the petitioner that he was only an independent director and he had nothing to do with the running of day to day affairs of respondent No.2 company nor he was responsible to the company for the conduct of the business. Therefore, in view of the
JUDGMENT
Menthol India Ltd., SCALE 2000(6) SC 578, the petitioner could not be held vicariously liable for the offence under Section L38 N.l. Act committed by respondent No.2 company. lt is further submitted that one
MOU was also executed between the parties on 19.06.2008, but respondent No.1 has deliberately concealed the existence of said MOU from the court and obtained the summoning order. Lastly, it is submitted that Section 138 N.l. Act is not attracted as the cheques were given as security.
Learned counsel for respondent No,1, on the contrary, has referred to the copy of the loan agreement dated 19.06.2008 and submitted that perusal of the loan agreement would show that a sum of {2 crores was borrowed by respondent No.2 company and for the repayment of aforesaid loan with interest, post dated cheques were issued, Thus, it cannot be said that the cheques were issued as security pursuant to MOU dated 19.06.2008. lt is further contended that the petitioner admittedly was director of the company. He was also responsible for conduct of business of respondent No.2 company and also responsible to the
Thus, it is concluded that summoning order passed by the learned M.M. cannot be faulted.
I have considered the rival contentions and perused the record. As regards the plea of the petitioner that the cheques were issued as security pursuant to an MOU dated 19.06.2008 which has been withheld by respondent No.1, it is suffice to say that this issue relates to the facts which would require evidence for determination during trial and this issue cannot be determined in proceedings under Section 482 Cr.P.C.
Regarding the main plea of the petitioner that he was not responsible for management of day to day affairs of the company, it would be appropriate to refer to the allegations in the complaint. Perusal of copy of the complaint annexed to the petition would show that in the complaint, averments pertaining to the role of the petitioner are mentioned in paragraphs 3, 4,5 & 6. Relevant portion of paragraphs 3, 4, 5 & 6 are, inter alia, reproduced thus:
"3. That the accused No.1 is also a public limited company, having its registered and corporate office at aforesaid address in which accused No.2 is Chairman and Chief Executive Officer, accused No.2, 3,4,5 are the active Director and accused No.6 is the Secretary and accused No.7 is the
Authorised Signatory of accused No.1 who executed Loan Agreement dated 19.06.2008 with the complainant on behalf of accused No.1....."
4. That in the second week of June, 2008 accused No.2 alongwith accused No.4 and 5 with reference of accused No.3 approached Director of the complainant company namely Jaspreet Pal Singh Batra and requested him {2,00,00,000/- for funding the corporate requirement of accused No.1 for a short period of three months as loan. Further, it is pertinent to mention here that accused No.3 is maintaining a close corporate relationship with the Director of the complainant company namely Mr. Jaspreet Pal Singh Batra. i7r 1.,' /
5. That on the request of accused No.2, 3, 4 and 5 on behalf of accused No.l, the complainant company agrees to make available a loan of {2,00,00,000/- for a period of three months at the rate of interest L.75Vo per month. Further, the accused No.3 assured Directors of the complainant company that the payment which have been made available by the complainant to the accused No.1 is absolutely safe and would be returned in due course of time as accused No.3 also assured that he is one of the oldest Director in accused No.1 and having control on the management and affairs of the accused No.1. 6..,.,.Further accused No.2 to 5 also agreed that they will return the said amount within three months from the date of advancement of the said amount. Further jt is submitted that the said cheque of {2,00,00,000/issued by the complainant in favour of accused No.1 duly encashed on 20.06.2008 by accused persons." On reading of the aforesaid averments, it is obvious that there are specific allegations in the complaint regarding the participation of the petitioner in executing of the deal for loan and that he was also the party to the promise for repayment of the loan within three months from the date of advancement. From these allegations, prima facie, it is apparent that the petitioner was actual participant in the transaction. Therefore, it cannot be said that he was not concerned with day to day management of the business of respondent No.2 company. In view of the above, it is apparent that the plea of the petitioner relates to the merits of the case, which requires evidence to be conducted during trial. As such, no interference at this stage is required to pass an order under Section 482 Cr.P.C..t* Petition is dismissed acEordingly. \ \ S'tt ' (AJrr BHXRTHOKE)
JUDGE AUGUST 04,ZOLL pst