Sanjana Gupta v. State of NCT of Delhi & Ors

1. On almost identical set of facts, circumstances and background, the second and third respondents herein had filed two criminal complaint cases (CC No.1405/1/2015 and CC No.4380/1/2015) each alleging offence under Section 138 ofNegotiable Instmments Act, 1988 having been committed on account ofnon-payment inspite ofnotices ofthe demand issued and served CRL.M. C. 1496/2016 Conn matter Page 1 of[4] 2018:DHC:8359 \\ by the second and third respondents (the complainants) in the wake of dishonour of the cheques referred to as bearing nos.17623 for Rs.20 lakhs and 17612 for Rs.[5] lakhs, both dated 01.06.2015, drawn on Axis Bank Limited, Prashant Vihar, New Delhi against the account of company described as Jindal Infra Build Private Limited (the fifth and sixth respondents respectively in these petitions). The petitioner was described in the said criminal complaints as an ex-Director ofthe said company (shown in the array as fourth accused), the other private party respondent in these petitions having been impleaded in theircapacity as the Directors of the said company, shown in the array of complaint as second and third accused.

2. The Metropolitan Magistrate having taken cognizance and, on the basis of the pre-summoning evidence, issued process including against the petitioner. Aggrieved by the said summoning orders in each of the said complaints, passed on 16.10.2015 and 12.10.2015 respectively, the present petitions have been filed invoking the inherent power and jurisdiction ofthis Court under Section 482 of the Code of Criminal Procedure, 1973. The T prime submission raised is that the petitioner, to the knowledge of the complainants had resigned as Director ofthe company (accused) prior to the filing of the complaint, such resignation having been tendered as per the petitioner's case even prior to the issuance ofthe cheques inquestion.

3. The petitions are contested by the complainants on the ground the form no. DIR-11 submitted to the Registrar ofCompanies, though indicating the date of filing ofthe resignation with the company to be 29.05.2015, was actually submitted later, the real date of such submission having been withheld and concealed, the story of resignation having been fraudulently CRL.M.C. 1496/2016 &Conn matter Page 2of[4] r- V fabricated so as to create a ground for the petitioner to be reheved of her responsibihty.

4. Upon perusal of the complaints in each case, however, it comes out clearly that the petitionerhad resigned from the company (accused) prior to the presentation of the cheques for collection at the bank and prior to the issuance of the legal notices of demand dated 13.08.2015. This admitted position is reflected by a bare perusal of the demand notices and cannot be controverted.

5. While dealing with more or less similar questions in a batch of matters styled as Jwala Devi Enterprises P. Ltd. v. Fadi El Jaouni (2018 see Online Del 10030), this Court construing the penal clause contained in Section 138 ofNegotiable Instruments Act, 1988 held, thus:- "/? is clearfrom theplain reading ofthe above quotedprovision and is now also well settled that the offence under Section 138 of the Negotiable Instruments Act does not stand constituted merely upon dishonour ofa cheque. The dishonour ofa cheque which had been issued by the person (who is sought to be prosecuted) infavour ofthe complainant must befollowed by a notice of demand within the stipulated period. It is the non payment ofthe amount ofthe cheque within the statutoryperiod after service of the notice of demand which constitutes the ojfence that is punishable under the aforementioned provision oflaw.''

6. In the above noted fact-situation where it is clear that the petitioner was not a Director of the company at the time of presentation or dishonour of the cheques and not the least at the time of service of notice of demand, / no liability even by invoking the provision contained in Section 141 of Negotiable Instruments Act, 1988 can be fastened against her. CRL.M. C. 1496/2016& Conn matter Page 3 of[4] r

7. In this view ofthe matter, the petitions are allowed. The proceedings against the petitioner arising out of two above-mentioned complaint cases pending with the court ofMetropolitan Magistrate are hereby quashed.

8. The petitions are disposed ofwith these observations.