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2021 (4) TMI 285 - HC - Indian LawsDishonor of Cheque - accused failed to pay the cheque amount within 15 days of receipt of legal Demand Notice - enforceable outstanding debt/liability or not - complaint sufficient to proceed against the petitioner as contemplated under Sections 138 and 141 of Negotiable Instruments Act or not - continuation of the proceedings against the petitioner, who claims to be neither the signatory of the cheque nor the person in charge of the accused-company - HELD THAT:- The Hon’ble Supreme Court in N. RANGACHARI VERSUS BHARAT SANCHAR NIGAM LTD [2007 (4) TMI 621 - SUPREME COURT] has held that an advertence to Sections 138 and 141 of the Negotiable Instruments Act shows that on the other elements of an offence under Section 138 being satisfied, the burden is on the Board of Directors or the officers in charge of the affairs of the company to show that they are not liable to be convicted. Any restriction on their power or existence of any special circumstance that makes them not liable is something that is peculiarly within their knowledge and it is for them to establish at the trial such a restriction or to show that at the relevant time they were not in charge of the affairs of the Company. Further, the Hon’ble Supreme Court in RAJESHBHAI MULJIBHAI PATEL AND OTHERS ETC. VERSUS STATE OF GUJARAT AND ANOTHER ETC. [2020 (2) TMI 412 - SUPREME COURT] has held that “When disputed questions of facts are involved which need to be adjudicated after the parties adduce evidence, the complaint under Section 138 of the N.I. Act ought not to have been quashed by the High Court by taking recourse to Section 482 Cr.P.C.”. Whether petitioner’s employment with the accused-company was confined to maintenance of accounts or he was the Director or Authorized Signatory of accused-company and whether or not the cheque in question was signed by him or whether complainant is able to bring sufficient material before the court to rope in petitioner for the offence in question, are the aspects which can be established during trial, therefore, it would be against principles of law to arrive at a conclusion without going into the merits of the case - petition dismissed.
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