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TMI Blog2016 (11) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... td., through its Managing Director-Mr. Vineet Aggarwal, resident of 733/734, Mukherjee Nagar, Meerut Sweet Wali Gali, Opposite Batra Cinema, Delhi, had made a request to the respondent-M/s Deepika Sarees Private Limited, for purchase of sarees on short term credit basis on behalf of M/s Meenakshi Sarees Pvt. Ltd. Consequently, Mr. Vibhor Aggarwal, Director of M/s Deepika Sarees Private Limited supplied sarees from time to time to M/s Meenakshi Sarees Pvt. Ltd. amounting to Rs. 27,00,000/- (Rupees Twenty Seven Lakhs). 4. Subsequently, Mr. Vineet Aggarwal, Director of M/s Meenakshi Sarees Pvt. Ltd. accepted the sale amount to be loan amount qua against his Company M/s. Meenakshi Sarees Pvt. Ltd. and issued two post dated cheques in the sum of Rs. 12 Lakhs and Rs. 15 Lakhs vide cheques no. 414228 and 565425, dated 20.09.2014, drawn on the current account of M/s. Meenakshi Saree Centre Pvt. Ltd. in ING Vysya Bank, Chandni Chowk branch, Dariba Kalan, Delhi. 5. The said cheques were presented on 03.11.2014 and later on, were dishonoured vide dishonour memo dated 05.11.2014, attracting the provisions of Section 138 read with Section 141 of the Negotiable Instruments Act, 1881. 6. The r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Sasi Bhusan Raju, Crl. M.C. 4687-90/2006, in support of her contentions and stated that there should be an existing debt or liability in order to attract criminal liability under Section 138 of the Negotiable Instruments Act. 10. The learned counsel for the petitioners further relied on an Apex Court judgment titled as Pooja Ravinder Devidasani Vs. State of Maharashtra & Anr., SLP (CRL) Nos. 9133-9139 of 2010, wherein a complaint was quashed as the appellant was neither a Director of the accused Company nor in charge of or involved in the day to day affairs of the Company at the time of commission of the alleged offence. 11. The learned counsel for the respondent, i.e., M/s Dipika Sarees Private Limited, on the other hand, submits that the cheques in question were issued on 20.09.2014. The learned counsel by placing reliance on the Form-32, points out that one of the petitioners, i.e., Ms. Mohini Aggarwal, was the Director of M/s. Meenakshi Sarees Centre Private Limited since the year 2009, which ipso facto is sufficient to dispel the arguments advanced by learned counsel for the petitioners. 12. The learned counsel for respondent further submits that once the petitioner (in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th, the question arises for determination is, whether the petitioners are liable for prosecution under Section 138 read with Section 141 of the Negotiable Instruments Act for the alleged offence of dishonour of cheques committed by the default Company? 16. The Hon'ble Supreme Court in the judgment reported as National Small Industries Corporation vs. Harmeet Singh Paintal & Anr., (2010) 3 SCC 330 has observed that only those persons who were in charge of and responsible for the conduct of the business of the Company at the time of commission of an offence will be liable for criminal action. A Director, who was not in charge of and was not responsible for the conduct of the business of the Company at the relevant time, will not be liable for the offence under Section 141 of the Negotiable Instruments Act. The relevant para of the judgment is reproduce as under: "13. Section 141 is a penal provision creating vicarious liability, and which, as per settled law, must be strictly construed. It is therefore, not sufficient to make a bald cursory statement in a complaint that the Director (arrayed as an accused) is in charge of and responsible to the company for the conduct of the busine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents Act qua against the present petitioners relying on Form-32 of the Company, i.e., M/s Meenakshi Saree Centre Private Limited. The Form-32 relied upon by the respondent, i.e., M/s Deepika Sarees Private Limited, in the complaint petition CC. No. 2011/1/14 is reproduced as under:- "4/22/2015 MCA21 ::Register DSC: View Signatory Details View Signatory Details Company/LLP Name MEENAKSHI SAREE CENTRE PRIVATE LIMITED CIN/LLPIN U18202DL2009PTC188313 List of Signatories DIN/DPI N/PAN Full Name Present residential address Designation Date of Appointment Whether DSC Registered Expiry Date of DSC 02498408 MOHINI AGARWAL 734, MUKHERJEE NAGAR, DELHI, 110009, Delhi, INDIA Director 09/03/2009 NO * 06987801 RICHA AGGARWAL 734, MUKHERJEE NAGAR, DELHI, DELHI, 110033, Delhi, INDIA Additio nal director 22/09/2014 YES (illegible) (Emphasis supplied)" 20. The Form-32 and the complaint petition CC. No. 2011/1/14 filed under Section 138 read with Section 141 of the Negotiable Instruments Act, on the date of the filing, shows that there were two Directors, i.e., Ms. Mohini Agarwal and Ms. Richa Aggarwal of the Company. Ms. Mohini Aggarwal was appo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctor of the Complainant Company has since expired on 25.09.2014. The accused company have failed to keep up their commitment/promise and have failed to pay, inspite of writing for sufficient time even after the demise of Sh. Vineet Aggarwal, no effort to liquidate the joint and severable liability has been made by the accused company or its other authorized directors." 23. However, the respondent, i.e., M/s Deepika Sarees Private Limited, in its complaint petition in para 13 has stated that Smt. Mohini Agarwal was one of the principal directors of the Company, being the mother of Mr. Vineet Aggarwal which is reproduced as under: "13. That the Accused no. 2 Smt. Mohini Aggarwal is one of the principal directors of the accused company besides being the mother of Sh. Vineet Aggarwal since deceased." 24. The notice issued by the respondent, i.e., M/s Deepika Sarees Private Limited, against the petitioners is dated 12.11.2014 and the reply thereof is dated 27.11.2014, in which the petitioners had denied their liability jointly and severely. 25. It is the case of the respondent, i.e., M/s Deepika Sarees Private Limited, that, the two cheques, i.e., cheques no. 414228 and 565425 date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n acts constituting criminal liability on their person. 31. The Apex Court in the judgment reported as Pepsi Foods Ltd. and Anr. vs. Special Judicial Magistrate and Ors., 1998 5 SCC 749, while dealing with the summoning of an offence in a criminal case has observed that summoning of an accused in a criminal case is a serious matter. The criminal law cannot be set in motion as a casual matter. The relevant para of the judgment is reproduced as under: "28. Summoning of an accused in a criminal cases is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of prelim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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