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2016 (11) TMI 78 - DELHI HIGH COURT

2016 (11) TMI 78 - DELHI HIGH COURT - TMI - Cheques in question issued by the deceased Managing Director - Negotiable instruments act - summons issues - Held that:- Instant is a case where the learned Magistrate has not gone into the depth of From-32, where the petitioner i.e., Ms. Richa Aggarwal, was not even an existing Director of the Company at the time of issuance of the said cheques in question. The learned Magistrate has not gone into the depth of the cause of action arisen qua against th .....

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s. Mohini Aggarwal after issuance of the cheques in question by the deceased, i.e., Mr. Vineet Aggarwal, till the filing of the complaint petition CC. No. 2011/1/14 by the respondent to attract the provisions of Section 138 read with Section 141 of the Negotiable Instruments Act. The aforesaid facts on record only indicates liability if so there is, it could be of civil liability and not criminal liability, which could be put into motion under Section 138 read with Section 141 of the Negotiable .....

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/14 dated 28.01.2015 preferred to file two separate petitions mentioned herein above, i.e., CRL.M.C. 4919/2015 and CRL.M.C. 4028/2015. 2. The brief facts stated in the petitions are that a complaint under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881was filed qua against the present petitioners by the respondent, i.e., M/s Deepika Sarees Private Limited, through its Director Mr. Vibhor Aggarwal. 3. It was alleged in the complaint petition that the Company-M/s. Meenaks .....

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; 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 ₹ 12 Lakhs and ₹ 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. Th .....

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ments and subsequently, tendered an affidavit of Mr. Vibhor Aggarwal as pre summoning evidence and the learned Metropolitan Magistrate registered the said complaint petition as CC No. 2011/1/14 and passed the impugned summoning order dated 28.01.2015. 7. Aggrieved from the aforesaid summoning order, the present petitioners filed two separate petitions under Section 482 of the Cr.PC i.e., CRL.M.C. 4919/2015 and CRL.M.C. 4028/2015, respectively. Hence the present petitions. 8. The learned counsel .....

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this regard, she has placed reliance on copy of Form-32 obtained from ROC, which is placed on record. 9. The learned counsel for the petitioners further submits that the allegation that the cheques were issued by the petitioners on 20.09.2014 is a false allegation, as on the said date the petitioners were not the Directors of the said Company and were not looking after the business on day-to-day basis. She further submits that it is because of this reason that the petitioners were unaware about .....

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unsel for the petitioners, have relied upon the judgment of this Court in the case of M/s. IKF Technologies Ltd. Ors. Vs. 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 & .....

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f 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 CRL.M.C. 4919/2015) was the Director of the Company (M/s. Meenakshi Saree Centre Private Limited) as per the Form-32, the cheques in question issued in favour of the respondent its .....

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ame are liable to be dismissed. Further the learned counsel placing reliance on the decision of the Apex Court reported as Mainuddin Abdul Sattar Shaikh Vs. Vijay D. Salvi, (2015) 9 SCC 622 and a judgment of this Court reported as Rajesh Aggarwal Vs. State, 171 (2010) DLT 51, contends that it is a settled law that unless and until notice under Section 251 Cr.P.C. is framed against the accused by the concerned Court, no quashing of the complaint under Section 138 of the Negotiable Instruments Act .....

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ua against M/s. Meenakshi Sarees Private Limited and its Directors. M/s. Meenakshi Saree Centre Private Limited has never purchased sarees as alleged. M/s. Meenakshi Saree Centre Private Limited does not owe any sum to the respondent No.1, i.e., M/s Deepika Sarees Private Limited, and further denied any cheques having been issued by the deceased-Mr. Vineet Aggarwal. The petitioners were not the Directors of the Company on the date of purchase of the sarees from the respondent and Notices require .....

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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 14 .....

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mplaint should spell out as to how and in what manner Respondent No. 1 was in-charge of or was responsible to the accused Company for the conduct of its business. This is in consonance with strict interpretation of penal statutes, especially, where such statutes create vicarious liability. 14. A company may have a number of Directors and to make any or all the Directors as accused in a complaint merely on the basis of a statement that they are in-charge of and responsible for the conduct of the .....

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t below in CC No. 2011/1/14 which is reproduced as under:- CC No. 2011/1/14 28.01.2015 Present: AR of the complainant in person along with Ld. counsel. The form-32 of the accused no.1 company has been submitted as per which the accused no. 2 and 3 are shown to be the Directors of the accused no. 1 company. PSE has already been led in this matter. Pre-summoning evidence by way of affidavit has been tendered. Arguments have been heard upon the point of summoning of the accused. After going through .....

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is at liberty to accompany with the process server for service of the summons. Sd/- (Riya Guha) MM(C-02)/Delhi 28.01.2015 19. The respondent, i.e., M/s Deepika Sarees Private Limited, had filed a complaint petition CC. No. 2011/1/14 under Section 138 read with Section 141 of the Negotiable Instruments 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 Pri .....

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01 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 appointed as Director of the Company, i.e., M/s Meenakshi Saree .....

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heques vide cheque No. 414228 and 565425, dated 20.09.2014, amounting to ₹ 12 Lacks and ₹ 15 Lacks respectively, drawn on the current account of M/s. Meenakshi Saree Centre Pvt. Ltd. in ING Vysya Bank, Chandni Chowk branch, Dariba Kalan, Delhi. 22. Further, as per para 11 of the complaint petition the said Managing Director, i.e., Mr. Vineet Aggarwal, has expired on 25.09.2014. The said paras 8 and 11 of the complaint petition are reproduced as under: 8. That the accused failed and n .....

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loan to the Accused company. Sh. Vineet Aggarwal for and on behalf of the Accused(s) acknowledged the said liability in the sum of ₹ 12 Lakhs and ₹ 15 Lakhs vide receipt dated 30.05.2014 and 26.06.2014. A duly signed receipt has been handed over to the Complainant. In order to secure the repayment of the said amount, two post dated cheques in the sum of ₹ 12 lakhs and ₹ 15 lakhs vide cheque no.414228 and 565425 dated 20.09.2014 drawn on the current account of the Accused .....

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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: .....

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he two cheques, i.e., cheques no. 414228 and 565425 dated 20.09.2014, in question were, issued by Mr. Vineet Aggarwal, Managing Director of the Company, i.e., M/s Meenakshi Sarees Private Limited. Further, it is an admitted case of the respondent that Mr. Vineet Aggarwal died on 25.09.2014. 26. The offence under Section 138 read with Section 141 of the Negotiable Instruments Act is committed when actus reus specifies the consequence, it is not enough that the person had engaged in voluntary cond .....

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uestion were issued by the Managing Director, i.e., Mr. Vineet Aggarwal, of the Company, i.e., M/s Meenakshi Saree Private Limited, on 20.09.2014. Subsequently, the said Managing Director-Mr. Vineet Aggarwal has admittedly died on 25.09.2014. 28. The Form-32 of the Company, i.e., M/s Meenakshi Saree Centre Private Limited, shows that one of the petitioners, i.e., Ms. Richa Aggarwal, became the Additional Director of the Company on 22.09.2014 and the cheques in question were issued two days prior .....

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or-Mr. Vineet Aggarwal. There is no change of state of mind after the issuance of the two cheques, i.e., cheques no. 414228 and 565425 dated 20.09.2014, in question by the Managing Director, i.e., Mr. Vineet Aggarwal, on the part of Ms. Mohini Aggarwal which shows her ignorance about her liability vide reply dated 27.11.2014. 30. Both the petitioners vide reply dated 27.11.2014 disputed their liability as nothing actus reus in furtherance of common acts constituting criminal liability on their p .....

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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 c .....

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