Chanakya Bhupen Celakravarti & Anr v. Moon Buildtech Pvt Ltd

1. Thepetitioners were summoned bythe Metropolitan Magistrate inten different complaint cases (they being CC Nos. 45561/2016, 45456/2016, 45474/2016, 45624/2016, 51344/2016, 46341/2016, 58671/2016, 46264/2016, 46406/2016, 45874/2016) each instituted by the respondent company, alleging offences under Section 138 of the Negotiable Instruments Act 1881 respecting different cheques issued for and on behalf, and against the account, of company described as M/s. Amrapali Silicon City P. Ltd. (hereinafter referred to as 'the Company Accused'), by summoning orders (dated 04.08.2016, 02.08.2016, 03.08.2016, 05.08.2016, 08.08.2016, 23.08.2016, 24.08.2016, 22.08.2016, 24.08.2016, 08.09.2016 respectively), they having been impleaded with reference to Section 141 oftheNegotiable CRL.M.C. 4263/2016 etc. Page4of[7]

2. Aggrieved by the said summoning orders and pleading that the status of the petitioners was that of non-executive directors in the aforementioned company at the relevant points of time, they being not responsible for the day-to-day affairs or conduct of the business of the company at the time of commission of offence in each case, these petitions have been submitted under section 482 of the Code of Criminal Procedure 1973 with the prayer for proceedings against the petitioners in the said criminal cases to be quashed, the same being an abuse ofthe process of law.

3. Alongwith the petitions, copies of the Form-32 submitted pursuant to Sections 303(2), 264(2) or 266(l)(a) and 266(1)(b)(iii) of the Companies Act, 1956 have been submitted, the same substantiating the status of the petitioners in relation to the Company Accused as that of non-executive directors.

4. The respondent, upon notice, appeared through counsel and the matters have remained pending thereafter, the opportunity given for reply affidavit to be filed having not been availed. When these matters were called out for final hearing, there is no appearance ofthe respondent. In fact, this has been the state of affairs over last three consecutive dates. There is no reason why these matters should remain pending. In absence of reply by respondent, it is to be inferred that the pleadings of the petitioners stating that their status vis-a-vis the company was of non-executive directors at the relevant point oftime, will have to be accepted as impliedly admitted. CRL.M.C. 4263/2016 etc. Page 5 of?

5. It is noted that in the criminal complaints the petitioners were generally described as the directors of the company accused and on that account being responsible for the day-today conduct of business of the company. Reference was made to legal notices of demand sent in the wake of dishonour of cheques by the respondent and the petitioner in these proceedings having sent a reply thereto. In the complaints, there are no averments as to the contents of the said reply or the position taken therein. A copy of the reply which was sent in answer to the legal notice of demand of the respondent company {i.e. complainant of the cases) shows that the said reply was sent on behalf of both petitioners informing the complainant company that the petitioners were non-executive directors on the relevant date of the commission of offence.

6. Following the ruling of this court in Jwala Devi Enterprises P. Ltd. v. Fadi EL Jaouni, 2018 SCC Online Del 10030, which was delivered on basis of the law vis-a-vis the criminal liability u/s 141 of the Negotiable Instruments Act 1881 laid down by the Supreme Court in three judgements i.e. SMS Pharmaceuticals Ltd. v. Neeta Bhalla, (2005) 8 SCC 89: 2005 SCC (Cri) 1975; Gunmala Sales (P) Ltd. v. Anu Mehta, (2015) 1 SCC 103 and Standard Chartered Bank v. State ofMaharashtra, (2016) 6 SCC 62, these petitions deserve to be allowed. Given the position of non-executive directors, the presumption under section 141 of the Negotiable Instruments Act cannot be raised against the petitioners. In the result, the summoning order against the two petitioners in the ten complaint cases mentioned above are hereby quashed.

7. The petitions and the apphcations filed therewith are disposed of in these terms. Dasti under the signature ofthe Court Master.