TMI Blog2023 (9) TMI 706X X X X Extracts X X X X X X X X Extracts X X X X ..... are not valid instruments in the eyes of law as Amandeep Singh was not having any authority to sign and issue the cheques in question. The issues raised in the present complaint require evidence and cannot be decided in the present petitions. The counsel for M/s Shalini Securities Private Limited referred the judgment passed by the Supreme Court in MRS. ANITA MALHOTRA VERSUS APPAREL EXPORT PROMOTION COUNCIL (APPAREL EXPORT PROMOTION COUNCIL) [ 2011 (11) TMI 532 - SUPREME COURT ] wherein it was observed that the criminal proceedings for the dishonour of the cheques in question against the non-executive ex-Director who has resigned from the company six years back are liable to be quashed. However, in the present case, the cheques in question were issued by Amandeep Singh from the account of M/s Shalini Securities Private Limited. The issue whether there is any liability against M/s Shalini Securities Private Limited and Amandeep Singh qua the cheques in question can only be decided by evidence during the trial. The present petitions are dismissed with the cost of Rs. 25,000/- (Rupees Twenty Five Thousand only) each on M/s Shalini Securities Private Limited and Amandeep Singh w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... okesh Thakkar, in July 2017, found that it was very difficult to make the payment of interest on the amount which he had borrowed from the market as loan and invested in the project of Amandeep Singh and accordingly, Lokesh Thakkar approached Amandeep Singh to get his share out of the profits. Amandeep Singh had started to avoid Lokesh Thakkar and therefore, Lokesh Thakkar started insisting Amandeep Singh to return his money and share in the profits. Lokesh Thakkar and Amandeep Singh, on 21.08.2017, at the instance of the local police, had decided to settle their pending disputes amicably. Amandeep Singh, out of the settlement, had handed over 11 post-dated cheques each amounting to Rs. 50 lakhs from the account of M/s Shalini Securities Private Limited which were signed by Amandeep Singh. The details of the cheques are as under:- S. No. Date Cheque No. 1. 02.04.2018 58310 2. 03.04.2018 58311 3. 05.04.2018 58312 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ord perused. Cognizance of the offence Us 138 Negotiable Instrument Act is taken. Pre-summoning evidence by way of an affidavit of complainant is already on record. Same is tendered in evidence. The complainant closes his pre-summoning evidence. In the present matters, the complainant has summoned Shalini Securities Pvt. Ltd. as accused no. 1 as per the cheques filed on record. They have been signed by the director of accused no. 1. In the light of this, there is enough prima facie evidence on record to summon accused no. 1 Shalini Securities Pvt. Ltd. In respect to accused no. 2, as per the form 32 filed on record by the complainant, accused no. 2 was not the Director of the company when the cheque in question was signed and was dishonoured. However, it has been alleged by the complainant that it was the accused no. 2, who had signed the cheques on behalf of the company and in light of this averment that the accused no. 2 is the signatory of the cheques, he too be summoned for the next date of hearing. Accordingly, both this accused be summoned on filing of PF and RC returnable on 22.11.2018. Summons shall be accompanied with a copy of complaint. Steps ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apacity being Director of M/s Shalini Securities Private Limited. Amandeep Singh has tendered his resignation on 05.11.2012 and as such Amandeep Singh ceased to be the Director and the authorised signatory of M/s Shalini Securities Private Limited from 05.11.2012. 4.2 After M/s Shalini Securities Private Limited came to know that the cheques in question were deposited in its account, a written complaint was made to the SHO, P.S. Subhash Place, Delhi on 24.04.2018 vide DD no.32B regarding the alleged fraud committed upon M/s Shalini Securities Private Limited. A letter was also written to the Branch Manager, Bank of Maharashtra, Kohat Enclave Branch, New Delhi on 01.05.2018 requesting the Manager to stop payment against the cheques in question. Praveen Babbar was appointed as Additional Director of M/s Shalini Securities Private Limited on 31.12.2016 and was subsequently appointed as Director of M/s Shalini Securities Private Limited on 30.09.2017 and he was authorised to act on behalf of M/s Shalini Securities Private Limited. 4.3 Amandeep Singh was the authorised signatory being the Director of the M/s Shalini Securities Private Limited only for the period with effect from 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 138 of NI Act be set aside. 6. The counsel for M/s Shalini Securities Private Limited argued that Lokesh Thakkar, as admitted by him in the complaint bearing CC no. 37/1/2018 (new Ct. no. 3062/2018), has entered into monetary transaction with Amandeep Singh in his personal capacity who has also returned Rs. 1 crores 28 lakhs to Lokesh Thakkar through his own bank account and in cash. Lokesh Thakkar has never paid or credited any amount to M/s Shalini Securities Private Limited. In these circumstances, there is no legally enforceable debt against M/s Shalini Securities Private Limited. Amandeep Singh has already resigned from M/s Shalini Securities Private Limited on 05.11.2012 i.e. long before the date of the cheques in question which were fraudulently signed by Amandeep Singh without any authority. The cheques in question are invalid instruments being signed by Amandeep Singh who was not authorised to sign it. The trial court vide the impugned order has taken cognizance for the offence punishable under section 138 of NI Act which is not in accordance with law. No triable issue is raised qua M/s Shalini Securities Private Limited in the present complaint and any offence whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e eyes of law. Amandeep Singh has already resigned from M/s Shalini Securities Private Limited in the year 2012 and the alleged cheques were dishonored in the year 2018 vide return memo dated 24.04.2018. As per Form-32, Amandeep Singh is not associated with M/s Shalini Securities Private Limited since 05.11.2012 as such, he cannot be said to be in-charge of and responsible for the affairs of the M/s Shalini Securities Private Limited. There is no specific allegation against Amandeep Singh and the complaint is liable to be dismissed. The counsel for Amandeep Singh cited the judgments passed by the Supreme Court in Jugesh Sehgal V Shamsher Singh Gogi, (2009) 14 SCC 683; DCM Financial Services Ltd. V J.N.Sareen and Another, (2008) 8 SCC 1; Anil Kumar Sahni V Gulshan Rai, (1993) 4 SCC 424 and NSIC Ltd. V Harmeet Singh Paintal and Another, (2010) 3 SCC 330. 8. The counsel for Lokesh Thakkar advanced oral arguments and also submitted written submissions. He argued that the impugned order is a speaking and reasoned order and should not be interfered with. M/s Shalini Securities Private Limited and Amandeep Singh were summoned by the trial court after due application of mind under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, 20 [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation. For the purposes of this section, debt or other liability means a legally enforceable debt or other liability . 10. The Supreme Court in Kusum Ingots Alloys Ltd. V Pennar Peterson Securities Ltd. Others, (2000) 2 SCC 745 laid down the following ingredients for taking cognizance under section 138 of the NI Act:- (i) A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability (ii) That cheque has been presented to the bank within a period of six months from the date on which it is drawn of within the period of its validity, whiche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed to be a person who was responsible for the affairs of M/s Shalini Securities Private Limited. However, it is also pleaded and alleged by Lokesh Thakkar that the cheques in question were delivered/handed over to him by Amandeep Singh. It is for the Amandeep Singh to explain how he came into the possession of the cheques of the account of M/s Shalini Securities Private Limited even after he resigned as Director with effect from 05.11.2012. It is also apparent from the perusal cheques in question that these cheques were issued from the account maintained on behalf of M/s Shalini Securities Private Limited and were signed by Amandeep Singh. It is for M/s Shalini Securities Private Limited and Amandeep Singh to prove during the evidence how the cheques in question came into possession of Amandeep Singh and under what circumstances these cheques were issued in favour of Lokesh Thakkar and these issues cannot be decided without evidence. At this stage, it cannot be said that Amandeep Singh is not liable to pay the cheque amounts and accordingly the impugned order is bad in respect of Amandeep Singh as well as M/s Shalini Securities Private Limited. It also cannot be said that the cheq ..... X X X X Extracts X X X X X X X X Extracts X X X X
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