Rushmika Chatterji v. NCT of Delhi & Anr.

1. This is a petition seeking quashing of Case No. 9367/2017 pending before the Court of learned MM, Patiala House Courts, New Delhi in case titled as “HDFC Bank Ltd. vs. M/s Techno Automobiles Pvt. Ltd. & Ors.”.

2. It is stated by Mr. Bansal, learned counsel for the petitioner that the petitioner is the Director who was not involved in the day-to-day affairs of the M/s Techno Automobiles Pvt. Ltd. He has drawn my attention to paragraph 3, 4 and 7 to state that the allegations against the petitioner are of a stereotype nature and it is Mr. Sandeep Bansil i.e. accused No.3, who was running the entire show.

3. He has further relied on the judgment of the Hon’ble Supreme Court in “Dilip Hariramani vs. Bank of Baroda” [(2022) SCC OnLine SC 579], and more particularly, paragraph 13, which reads as under:- “13. In the present case, we have reproduced the contents of the complaint and the deposition of PW-1. It is an admitted case of the respondent Bank that the appellant had not issued any of the three cheques, which had been dishonoured, in his personal capacity or otherwise as a partner. In the absence of any evidence led by the prosecution to show and establish that the appellant was in charge of and responsible for the conduct of the affairs of the firm, an expression interpreted by this Court in Girdhari Lal Gupta v. D.H. Mehta to mean „a person in overall control of the day-to-day business of the company or the firm‟, the conviction of the appellant has to be set aside.12 The appellant cannot be convicted merely because he was a partner of the firm which had taken the loan or that he stood as a guarantor for such a loan. The Partnership Act, 1932 creates civil liability. Further, the guarantor's liability under the Indian Contract Act, 1872 is a civil liability. The appellant may have civil liability and may also be liable under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. However, vicarious liability in the criminal law in terms of Section 141 of the NI Act cannot be fastened because of the civil liability. Vicarious liability under sub-section (1) to Section 141 of the NI Act can be pinned when the person is in overall control of the dayto-day business of the company or firm. Vicarious liability under sub-section (2) to Section 141 of ARORA the NI Act can arise because of the director, manager, secretary, or other officer's personal conduct, functional or transactional role, notwithstanding that the person was not in overall control of the day-to-day business of the company when the offence was committed. Vicarious liability under sub-section (2) is attracted when the offence is committed with the consent, connivance, or is attributable to the neglect on the part of a director, manager, secretary, or other officer of the Company.”

4. Mr. Bansal, learned counsel also relies upon the judgment titled “Sunita Palta & Ors. vs. M/s Kit Marketing Pvt. Ltd.” in CRL.M.C. 1410/2018.

5. He states in the present case that there are only bald averments and the petitioner was not running the day-to-day affairs of the said automobile company.

6. He further submits that the cheque is not signed by the petitioner and also was not the authorised signatory of M/s Techno Automobiles Pvt. Ltd. He further states that the blank cheque which is the cheque in question was given way back in the year 2013 and the same has been filled by the respondent No.2 and lodged for presentation.

7. Per contra Mr. Sharma, learned counsel for the respondent has drawn my attention to paragraph 8 of the complaint which shows that the petitioner had executed a deed of guarantee dated 28.10.2013. He further has drawn my attention to a judgment titled “Standard Chartered Bank vs. State of Maharashtra and Ors.” [(2016) 6 SCC ARORA 62] and more particularly, paragraphs 30 and 31 which read as under:-

8. I have heard learned counsels for the parties.

9. In the present case, respondent has stated that the petitioner was incharge and responsible for conduct of the affairs of M/s Techno Automobiles Pvt. Ltd. In addition, a deed of guarantee dated 28.10.2013 was executed by the petitioner in favour of the respondent bank.

10. Mr. Sharma, learned counsel further states that the Form-32 has not been filed which is a part of the Trial Court records which shows that the petitioner is a Promotor/ Director of M/s Techno Automobiles Pvt. Ltd.

11. The fact whether she was responsible for day-to-day affairs of the company and to what extent cannot be adjudicated today in the absence of her stepping into the witness box.