Syed Jamshed Abbas v. Easy Trip Planners Ltd.

1. Petitioner has approached this Court challenging the summoning Order dated 28.11.2019, passed by the learned Metropolitan Magistrate in C.T. Case No.4506/2019.

2. The facts, in brief, leading to the present Petition, are that a complaint under Section 138 of the NI Act was filed by the Respondent No.1 herein against M/s Eco Sky Tours and Travel Pvt. Ltd. (Respondent No.2 herein) and other accused, including the Petitioner herein, who is the Accused No.4 in the Complaint and is shown as a Director of Respondent No.2 Company. In the complaint it is stated that the Complainant Company is engaged in the business of providing ticket booking facility for domestic and international air travel, railway reservations, ticketing hotel bookings, travel insurance, tours, holiday packages, as well as other travel and hospitality goods and services to various travel agents as well as individuals. The complaint further notes that the Respondent No.2 company is engaged in the business of providing services of tickets booking, hotel booking, travel insurance, tours, packages etc. It is stated that Respondent No.2/Accused Company approached the Respondent No.1/Complainant Company and offered to work with them. It is stated that the Petitioner herein is engaged in the dayto-day activities of the Respondent No.2/Accused Company. It is stated that Respondent No.1 and 2 entered into a contract wherein it was agreed that the Respondent No.2/Accused Company could book the tickets of its customers via the online portal of the Complainant Company in lieu of credit based facility and the Respondent No.2/Accused Company was to settle the account within seven working days from the date of credit availed. It is stated that the Accused Company issued a cheque bearing No.000059 dated 21.08.2019 for Rs.2,00,000/- drawn on HDFC Bank in order to discharge its admitted liability. It is stated that the said cheque was returned with the endorsement “drawers signature differs”. It is stated that a notice under Section 138 of the NI Act was sent by the Respondent No.1 to the Respondent No.2/Accused Company on 05.09.2019 and since the amount was not paid by the Respondent No.2/Accused Company, the instant complaint has been filed. Summons have been issued on 28.11.2019 against the accused persons, including the Petitioner herein. It is this Order which is under challenge in the present Petition.

3. Learned Counsel for the Petitioner states that the Petitioner is the Director of M/s Eco Sky Travel and Tours Pvt. Ltd and not of M/s Eco Sky Tours and Travel Pvt. Ltd. He has taken this Court through the documents filed by the Complainant which includes master data of the Ministry of Corporate Affairs to substantiate his argument wherein the Complainant has given the details of M/s Eco Sky Tours and Travel Pvt. Ltd. He, therefore, states that necessary documents to summon the Petitioner has not been filed. He states that the summoning Order is not appropriate and ought to be set aside.

4. The contention raised by the learned Counsel for the Petitioner cannot be accepted. The accused in the present case is M/s Eco Sky Tours and Travel Pvt. Ltd. The averment against the Petitioner in the complaint given by the Respondent No.2 is specific and for the sake of convenience the same is being reproduced as under:

5. In the considered opinion of this Court, the fact that the Master Data produced by the Complainant in its complaint pertains to M/s Eco Sky Travels and Tour Private Limited and the cheque has been issued by M/s Eco Sky Tours and Travels Private Limited will not vitiate the summoning Order as the averments in the Complaint clearly shows that the Petitioner has signed the MoU on behalf of M/s Eco Sky Tours and Travels Private Limited which is sufficient to substantiate that the Petitioner is responsible for the conduct of day-to-day affairs of the Accused Company. Additionally, in the present Petition, it is nowhere stated that the Petitioner is not a Director of M/s Eco Sky Tours and Travels Private Limited. It is stated that the MoU has been signed by the Petitioner.

6. The Apex Court in S.P. Mani & Mohan Dairy v. Snehalatha Elangovan, (2023) 10 SCC 685, has analysed Sections 138 and 141 of the NI Act and after discussing various judgments on the concept of fastening of vicarious liability, has observed as under:

the same.

42.5. The laudable object of preventing bouncing of cheques and sustaining the credibility of commercial transactions resulting in the enactment of Sections 138 and 141, respectively, should be kept in mind by the Court concerned.

42.6. These provisions create a statutory presumption of dishonesty exposing a person to criminal liability if payment is not made within the statutory period even after the issue of notice.

42.7. The power of quashing should be exercised very sparingly and where, read as a whole, the factual foundation for the offence has been laid in the complaint, it should not be quashed.

42.8. The Court concerned would owe a duty to discharge the accused if taking everything stated in the complaint is correct and construing the allegations made therein liberally in favour of the complainant, the ingredients of the offence are altogether lacking.” (emphasis supplied)

7. In the absence of any categorical averment that the Petitioner herein is not the Director of the Accused Company and in view of the averment that the Petitioner has signed the MoU on behalf of the Accused Company, this Court is of the opinion that the summons issued against the Petitioner cannot be found fault with. However, it is open for the Petitioner to lead evidence at an appropriate stage during trial to show that he is not responsible for the conduct of the affairs of the Accused Company.

8. With these observations, the Petition is dismissed along with the pending applications, if any.