Dinesh Gupta v. HT Media Limited & Anr.

1. By way of these petitions, the petitioner is seeking quashing of Criminal Complaint Nos. 3653/2022 and 3654/2022, filed under Section 138/141 of the Negotiable Instruments Act, 1881 [hereafter „NI Act‟], by the respondent no. 1, which are pending before learned JMFC-03, New Delhi, Patiala House Court, Delhi [hereafter „Magistrate‟], and for setting aside of summoning orders dated 02.05.2022, passed in the aforesaid cases, and the proceedings thereunder qua the petitioner herein.

2. Brief facts of the case, as borne out of the complaint i.e. CC No. 3653/2022, titled “HT Media Ltd. v. PG Advertising Pvt. Ltd.” are that the complainant HT Media Ltd. was engaged in the business of printing and publication of newspapers including Hindustan Times and Mint; creating, developing and maintaining online portals; broadcasting FM Radio in Delhi and Mumbai. It was alleged that accused no. 1 i.e. PG Advertising Pvt. Ltd. (accredited with INS - Indian Newspaper Society) had approached the complainant through its Directors/representatives and sought the services of the complainant for publishing advertisements for their clients in the publications of the complainant. Swayed by the representation and assurances of the accused persons, the complainant had agreed to provide services to the accused persons and published advertisements for their clients. It is alleged that the accused persons failed to comply with their obligations and undertakings and failed to dear the invoices of the complainant and a principal amount of Rs. 2,27,06,941/- was payable by the accused persons to the complainant. It is alleged that in partial discharge of its liability, the accused had issued cheque no. 011015 for an amount of Rs. 65,12,936/-, dated 29.02.2020, drawn on Standard Chartered Bank, WEA Karol Bagh, Delhi having account no. 52905083659, in favour of the complainant, and had assured the complainant that the said cheque would be honoured on its presentation. However, upon being presented for encashment with its banker i.e. Citibank, Connaught Circus, New Delhi-110001 for encashment, the aforesaid cheque was returned dishonoured with the remarks „Funds Insufficient‟ vide returning memo dated 04.03.2020. Eventually, after service of legal notice to the accused persons, the present complaint was filed under Section 138/141 of NI Act.

3. Similarly, in CC No. 3654/2022, titled “Hindustan Media Ventures Ltd. v. PG Advertising Pvt. Ltd.”, it is averred that the complainant is engaged in the business of publishing various newspapers, periodicals including Hindustan (Hindi), Nandan, Kadambini and other literary and print publications. It is alleged that accused no. 1 i.e. PG Advertising Pvt. Ltd. had approached the complainant through its Directors/representatives and sought its services. Eventually, a principal amount of Rs. 43,28,025/- was payable by the accused persons to the complainant. In partial discharge of its liability, the accused had issued cheque no. 011016 for an amount of Rs. 22,31,023/-, dated 29.02.2020, drawn on Standard Chartered Bank, WEA Karol Bagh, Delhi having account no. 52905083659, in favour of the complainant, and had assured the complainant that the said cheque would be honoured on its presentation. However, upon being presented for encashment with its banker i.e. HDFC Bank, K.G. Marg, New Delhi, for encashment, the aforesaid cheque was returned dishonoured with the remarks „Funds Insufficient‟ vide returning memo dated 05.03.2020. Eventually, after service of legal notice to the accused persons, the present complaint was filed under Section 138/141 of NI Act.

4. By way of impugned summoning order dated 02.05.2022, the learned Magistrate was pleased to issue summons to the accused persons, i.e. accused no. 1 – PG Advertising Pvt. Ltd., and accused no. 2 – Mr. Dinesh Gupta (the petitioner), while the accused no. 3 was dropped as an accused on the basis of the statement made by the complainant in this regard.

5. The petitioner (accused no. 2 – Mr. Dinesh Gupta) has assailed the impugned summoning order and sought quashing of the complaint case qua him. It is argued by the learned counsel appearing for the petitioner that it has not been specifically averred in the complaint as to what in manner, the petitioner herein was in charge of and responsible to the accused company for its day-to-day affairs, except the fact that petitioner is the director of the accused company. It is also stated that he is neither the signatory nor the representative of the accused company in any manner. It is also argued that the accused company i.e. PG Advertising Pvt. Ltd. is now under Corporate Insolvency Resolution Process (CIRP) and interim resolution professional has also been appointed by the NCLT, Delhi. It is also stated that no statutory and mandatory legal notice under Section 138 of NI Act was sent to the petitioner. It is contended on behalf of the petitioner that in absence of any specific averments in the complaint against the petitioner and the other requirement of Section 138/141 of NI Act also being not fulfilled, the summoning order is liable to be quashed.

6. The learned counsel appearing for the respondent no. 1, on the other hand, argues that the petitioner has deliberately suppressed material facts and has not filed relevant documents with the petitions including documents filed by the respondent no. 1 along with the complaint before the learned Magistrate. It is stated that the petitioner herein is the Director of the respondent no. 2/accused company and MCA data filed with the complaint shows him to be the director since 08.04.2005, which is also the date of incorporation of the accused company. It is argued that the petitioner is in fact the Chairman of the Prabhatam Group. It is further argued that the complainant has filed email exchange from 06.03.2020 to 01.04.2020 alongwith the complaint which refers to the outstanding amounts and return of cheque and a copy has been sent to the petitioner along with the said mails, at the email id: chairman@prabhatamgroup.com. Further, the website of the Prabhatamgroup.com also shows him to be the chairman and mentions the Chairman‟s message with his name and his photograph. It is contended that there are clear and specific averments in the complaint in terms of Section 141 of NI Act against the petitioner. It is also stated that the petition suffers from gross delay as the summoning order was passed on 02.05.2022, notice was framed on 03.02.2023; however, the present petition was filed only in January 2025. It is also submitted that the petitioner was not appearing before the learned Magistrate despite issuance of bailable warrants. It is thus prayed that the present petition be dismissed.

7. This Court has heard arguments addressed on behalf of both the parties and has perused the material available on record.

8. Having gone through the records of the case, this Court is of the opinion that the respondent no. 1/complainant has made the following averments in the complaint, against the present petitioner (accused no. 2):

severally liable along with accused no. 1 company.”

9. A perusal of the contents of the complaints shows that the specific averments have been made in respect of the petitioner in both the complaints, that he was responsible for day-to-day affairs of the accused company. The complainant had also filed the MCA data alongwith the complaints, which clearly shows him as the Director of the accused company since its incorporation i.e. 08.04.2005, which has not been disputed by the petitioner herein. The relevant portion of the said MCA record is set out below:

10. The complainant has also filed on record the e-mails wherein there are promises of repayment of the money as well as information regarding the cheques being dishonoured, and the said emails were also addressed to the Chairman of the Prabhatam Group (the parent company). The respondent no. 1 has also shown that the website of the company (Prabhatamgroup.com) also shows the petitioner as its Chairman and has published his photograph along with a message on behalf of the company.

11. On the other hand, the petitioner herein has not been able to bring on record any material to show that he was not the Director or in-charge of the day-to-day functioning of the accused company. At this juncture, it is pertinent to also take note of the decision of Hon‟ble Supreme Court in case of S.P. Mani and Mohan Dairy v. Dr. Snehalatha Elangovan: (2023) 10 SCC 685. The relevant observations are extracted hereunder:

he/she had exercised due diligence to prevent the commission of such offence, he/she will not be liable of punishment.