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HIMANSHU CHOPRA ..... Petitioner ATUL CHOPRA ..... Petitioner
Through: Mr.Chandan Bhatia, Adv.
Through: Ms.Priyanka Dalal, APP.
Mr.Prince Arora and Mr.Gagan Gupta, Advs. for R-2
JUDGMENT
1. These petitions have been filed under Section 482 of the Code of Criminal Procedure, 1973 (in short, „Cr.P.C.‟), challenging the summoning orders dated 07.03.2019 and 23.08.2019, passed in CC No. 391/2019; CC No. 1041/2019; CC No. 2055/2019; CC NO. 391/2019; CC No. 695/2019; CC No. 2055/2019; CC No. 695/2019; CC No. 1041/2019, all titled Parshant Gupta v. M/s AM Vinyl & Ors. (hereinafter collectively referred to as the „Impugned Orders‟) by the learned Additional Chief Metropolitan Magistrate, Shahadara District, Karkardooma Courts, Delhi (hereinafter referred to as the „Trial Court‟).
2. As the submissions of the parties are common in all these petitions, they were taken up for hearing together and are being disposed of by this common judgment.
3. The limited challenge of the petitioners to the Impugned Orders is that the learned Trial Court has failed to appreciate that the petitioners had resigned from the accused Company, that is, M/s AM Vinyl Pvt. Ltd., on 25.03.2018, while the cheques that had been issued by the Company to the respondent no.2, that is, the complainant, were handed over to the respondent no.2 and returned unpaid much later and after the resignation of the petitioners.
4. The learned counsel for the petitioners submits that the offence was committed by the Company after the resignation of the petitioners, therefore, the petitioners cannot be made liable for the offence under Section 138 of the Negotiable Instruments Act, 1881 (in short, „NI Act‟). In support, he places reliance on the judgments of the Supreme Court in Hareram Satpathy v. Tikaram Agarwala & Ors. (1978) 4 SCC 58; S.M.S. Pharmaceutical Ltd. v. Neeta Bhalla & Anr. (2005) 8 SCC 89; CREF Finance Ltd v. Shree Shanthi Homes (P) Ltd. & Anr. (2005) 7 SCC 467; N.K. Wahi v. Shekhar Singh & Ors. (2007) 9 SCC 481; and of this Court in J.B. Garg v. State & Anr. 2006 OnLine Del 892; J.N.Bhatia & Ors. v. State & Anr. 2006 SCC OnLine Del 1598; Ashok Sikka & Ors. v. State 2008 SCC OnLine Del 166; and Man Mohan Patnaik v. CISCO Systems Capital India Pvt. Ltd. & Ors., 2022 SCC OnLine Del 4652.
5. On the other hand, the learned counsel for the respondent NO. 2/complainant submits that specific allegations have been made in the complaint against the petitioner(s) of the complainant having entered into the transaction for the supply of goods by the complainant based on the assurances of the petitioner(s), that they are the in-charge of the day-to-day activities/affairs of the Company and shall be responsible for the acts of omission and commission as well as the conduct of the said Company. He submits that, at the stage of issuing summons to the accused, the learned Trial Court is not to conduct a mini-trial or a roving inquiry, but is to only prima facie find that a case has been made out against the accused person(s). Analysis & Findings:
6. I have considered the submissions made by the learned counsels for the parties.
7. At the outset, three important principles of law would have to be kept in mind while considering the respective submissions of the learned counsels for the parties: a) At the stage of issuing process, the learned Trial Court is mainly concerned with the allegations made in the complaint and the evidence led in support of the same. The learned Trial Court is only to be prima facie satisfied that there are sufficient grounds for proceeding against the accused person(s). The learned Trial Court is not even required to record the reasons while issuing the process. At this stage, it is not the province of the learned Trial Court to enter into a detailed discussion/analysis on the merits or demerits of the case. Reference in this regard is made to the judgments of the Supreme Court in UP Pollution Control Board v. Mohan Meakins Ltd. & Ors. (2000) 3 SCC 745 and Bhushan Kumar & Another v. State (NCT of Delhi) & Another (2012) 5 SCC 424. b) Exercise of powers by the High Court under Section 482 of the Cr.P.C. is limited in its scope and can be exercised only where the Court is fully satisfied that the material produced would irrefutably rule out the charge and is of such sterling and impeccable quality that the invocation of powers under Section 482 of the Cr.P.C. to quash the criminal proceedings is warranted. Reference is placed on the judgments of the Supreme Court in Smt.Nagawwa v. Veeranna Shivalingappa Konjalgi & Ors., (1976) 3 SCC 736; HMT Watches Ltd. v. M.A. Abida & Anr. (2015) 11 SCC 776; Rajiv Thapar & Ors. v. Madan Lal Kapoor (2013) 3 SCC 330; and, Rathish Babu Unnikrishnan v. State (Govt. of NCT of Delhi) & Anr. 2022 SCC OnLine SC 513. c) For attracting Section 141 of the NI Act, the primary responsibility of the complainant is to make specific averments in the complaint so as to make the accused vicariously liable. Thereafter, the burden is on the Board of Directors or the officers in-charge of the affairs of the Company/partners of a firm to show that they were not liable to be convicted. He/she must make out a case that making him/her stand the trial would be an abuse of the process of the Court. {Refer: S.P.Mani & Mohan Diary v. Dr.Snehalatha Elangovan, 2022 SC OnLine SC 1238}
8. Testing the submissions made by the learned counsels for the parties on the above principles, in the present case, the complainant in his complaint has alleged as under:
9. The petitioners herein have been arrayed as the accused nos.[2] and 3 in the complaints filed by the respondent no.2. A reading of the above averments in the complaint(s) would show that specific allegations have been made against the petitioner(s) herein of them not only being in charge of the affairs of the Company but also giving assurances to the complainant, based whereon the complainant had entered into the transaction of supplying goods and later, into the Settlement Agreement.
10. Section 141 of the NI Act reads as under:
11. A reading of the above would show that the abovementioned Section is in two parts. While Sub-section (1) of Section 141 makes “every person” who, at the time the offence was committed, was in charge of and responsible for the day-to-day affairs and conduct of the business of the company, to be “deemed to be guilty of the offence”, unless he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such an offence, Sub-section (2) of Section 141 makes any director, manager, secretary, or other officer of the Company, with whose consent or connivance of or due to whose neglect the offence has been committed by the company to be deemed to be liable to be proceeded against and punished under Section 138 of the NI Act.
12. The Supreme Court in its recent decision in S.P.Mani & Mohan Diary (supra), considering the above provision in detail has held as under:
13. In the present case, as noted hereinabove, it is the case of the respondent no.2 that even the cheque, on the basis of which the complaints have been made, were given by the company and taken by the respondent no.2 on the assurance of the petitioners herein that the said cheques would be duly honoured at the time of their presentation. These cheques are stated to be given post the date of the alleged resignation of the petitioners. It is also important to note that there were other Directors arrayed as accused in the complaint(s), however, against them such averment is not specifically made. The averments made in the paragraphs 5 and 7 are specifically made against the petitioners herein. In any case, whether this averment of the respondent no.2 is correct or not, has to be tested during the trial. As noted hereinabove, this is not the stage for testing the veracity of the above averments made by the respondent no.2 in the complaint(s). The same shall have to be tested in trial by way of evidence.
CONCLUSION
14. In view of the above, I do not find any merit in the challenge made by the petitioners in the present petitions.
15. The petitions along with the pending applications are accordingly, dismissed.
16. Any and all observations made hereinabove shall not amount to an expression of opinion on merits of the said Complaint Cases. They shall be adjudicated upon by the learned Trial Court remaining uninfluenced by any observation made in the present judgment.
17. There shall be no orders as to costs.