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2016 (9) TMI 660 - DELHI HIGH COURT

2016 (9) TMI 660 - DELHI HIGH COURT - TMI - Dishonor of cheque - Summon to the petitioner under Section 319 Cr.P.C - Held that:- Undisputedly, the petitioner was the Chairman and Managing Director of the company and as per the judgment in the case of S.M.S. Pharmaceuticals (2005 (9) TMI 304 - SUPREME COURT OF INDIA ), the Managing Director would be responsible for day to day affairs of the company. The argument advanced by the learned Senior Counsel for the petitioner that the petitioner was not .....

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r Section 138 of the Negotiable Instruments Act. Adding the name of Mr.Vijay Mallya during the proceedings brought forth before the Court below that he was the Chairman and Managing Director of the company which is guilty for dishonouring the cheques in question, would be covered under Section 141 of the Negotiable Instruments Act and cannot be termed as abuse to the process of law as envisaged in Section 482 Cr.P.C. - In view of the above facts and circumstances, this Court is of the consid .....

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Advocate with Mr. L.K. Singh, Mr. S.K. Singh, Mr. Aayush Chandra, Advocates P.S.TEJI, J. 1. These four petitions have been filed by the petitioner under Section 482 & 483 of the Code of Criminal Procedure, 1973 (hereinafter shall be referred to as the Cr.P.C. ) for quashing of order dated 02.09.2014, passed by the learned Sessions Judge, Patiala House Courts, New Delhi whereby the revision petition moved by the petitioner was dismissed, which was filed against the order dated 13.01.2014 pass .....

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st the accused persons, namely, M/s Kingfisher Airlines Limited, Mr.Sanjay Aggarwal (Chief Executive Officer), Mr.A. Raghunathan (Chief Financial Officer), Mr.Inder Singh (Authorized Signatory) and Mr.G. Visweswaran (Authorized Signatory). The Court below had taken the cognizance on 22.06.2012. The complainant had adduced presummoning evidence. Summons against the above accused persons were issued on 22.06.2012. On 12.08.2015, notice under Section 251 of the Cr.P.C. was framed against the accuse .....

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ed by the petitioner. 4. Arguments advanced by Mr.Ramesh Gupta, Senior Advocate for the petitioner as well as of Ms.Geeta Luthra, Senior Advocate for the respondent were heard. 5. Arguments advanced by the learned Senior Counsel for the petitioner that power to summon an accused under Section 319 Cr.P.C. can be exercised only once some additional evidence has been recorded before the Court, but in the present case there was nothing against the petitioner in the pre-summoning evidence and the Cou .....

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of parties as an accused as the complainant was well aware that the petitioner was not involved in day to day operations of Kingfisher Airlines. It was further argued that the application under Section 319 Cr.P.C. filed by the complainant was barred by limitation as it was moved after 18 months of issuance of legal notice. 6. On the other hand, learned Senior Counsel for the respondent argued that it is not in dispute that the petitioner was the Chairman and Managing Director of the Kingfisher A .....

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e petitioner who being C&MD of the company had failed to comply with the requirement of the legal notice. 7. The contention of the petitioner is that there was no evidence against the petitioner in the pre-summoning evidence led by the complainant and thus, there was no question to summon the petitioner under Section 319 Cr.P.C. It has been contended that the term evidence referred in Section 319 includes cross-examination of witness and in the present case only examination in chief was reco .....

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d to wait till the said evidence is tested on cross-examination for it is the satisfaction of the court which can be gathered from the reasons recorded by the court, in respect of complicity of some other person(s), not facing the trial in the offence. 9. In view of the above law laid down by the Hon ble Apex Court in the case of Hardeep Singh (supra), the examination in chief of a witness is sufficient to term it as an evidence , as mentioned in Section 319 Cr.P.C. to summon accused. In the pre .....

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. The other contention on behalf of the petitioner is that his name was not mentioned in the complaint, therefore, he could not have been impleaded as accused in the complaint case. The Hon ble Apex Court in the case of S.M.S. Pharmaceuticals Ltd. vs. Neeta Bhalla and Anr. MANU/SC/0622/2005 held that : The answer to Question (c) has to be in the affirmative. The question notes that the managing director or joint managing director would be admittedly in charge of the company and responsible to th .....

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that : 15. If the requirement that such individual notices to the directors must additionally be given is read into the concerned provisions, it will not only be against the plain meaning and construction of the provision but will make the remedy under Section 138 wholly cumbersome. In a given case the ordinary lapse or negligence on part of the Company could easily be rectified and amends could be made upon receipt of a notice under Section 138 by the Company. It would be unnecessary at that p .....

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ction 138. Thus a complaint can be filed within the aggregate period of seventy five days from the dishonour, by which time a complainant can gather requisite information as regards names and other details as to who were in charge of and how they were responsible for the affairs of the Company. But if we accept the logic that has weighed with the High Court in the present case, such period gets reduced to 30 days only. Furthermore, unlike proviso to clause (b) of Section 142 of the Act, such per .....

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irs of the Company would be aware of the receipt of notice by the Company under Section 138. Therefore neither on literal construction nor on the touch stone of purposive construction such requirement could or ought to be read into Section 138 of the Act…. In National Small Industries Corp. Ltd. v. Harmeet Singh Paintal and Anr. MANU/SC/0112/2010, the Hon ble Apex Court observed that as per Section 141 of the Negotiable Instruments Act what is required is that the persons who are sought t .....

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ime when the offence was committed. 11. It is not in dispute that the petitioner was the Chairman and Managing Director of Kingfisher Airlines Limited and thus was the incharge and fully responsible for the day to day business of the said company. It is also not in dispute that the cheques in question were issued by the said company and the petitioner being its Chairman and Managing Director was responsible for the conduct of the business of the company. Therefore, mere nonmentioning of the name .....

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