TMI Blog2013 (8) TMI 1065X X X X Extracts X X X X X X X X Extracts X X X X ..... ) In C.R.M.-M-15903-2013, the quashing of the complainant case No. 3846 RM/12 (Old No. 2057/2012) dated 29.08.2012, and summoning order dated 29.08.2012, passed by Judicial Magistrate 1st Class, Gurgaon, and all consequent proceedings arising therefrom has been sought. ( 4. ) Whereas , in C.R.M.-M-15904-2013, the petitioners, Paresh Jain and Rakesh Kumar Jain, have sought quashing of complainant case No. 3844 RM/12 (Old No. 2237/2012) dated 06.08.2012, and summoning order dated 06.08.2012, passed by Judicial Magistrate 1st Class, Gurgaon, and all consequent proceedings arising therefrom. ( 5. ) However , for brevity, the facts are being derived from C.R.M.- M-3976-2013. ( 6. ) The brief facts emerging from the pleadings of the parties are as under:-- ( 7. ) On 25.03.2009, the respondent had granted factoring facility to M/s. Vikash Metal Power Ltd., who is described as 'Borrower' in the factoring transaction; and M/s. Action distributors Pvt. Ltd. M/s. Sahaj Distributors Private Ltd. are 'Approved Debtor' in the said transaction. This implied that M/s. Vikash Metal Power Ltd. was selling goods to M/s. Action Distributors Pvt. Ltd. M/s. Sahaj Dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titions is that whether there are specific averments made in the impugned complaints that the petitioner are incharge of and responsible for the conduct of the business of the company? If not, its effects. ( 12. ) The specific averments in paragraph 3 of the complaint to the extent that accused No. 2 to 7 are the Managing Director/Directors or authorized signatories and responsible persons for day to day act, conduct and affairs of the business as well as the liabilities of the accused No. 1, would prima facie reveal that offence under Section 138 of the Act is made out against each and every person including the petitioners herein. However, it is settled law that even a non-director can be liable under Section 141 of the Act, on the basis of the averments made by the complainant in the complaint. ( 13. ) The petitioners are relying upon a documents i.e. their resignations from the board of M/s. Vikash Metal Power Ltd., on 26/29.02.2012, which fact is to be decided by leading evidence in the trial Court. Even if it is presumed that the said alleged documents are true, even then proceedings against the petitioners herein are not liable to be quashed on the ground that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. We have seen that merely being described as a director in a company is not sufficient to satisfy the requirement of Section 141. Even a non-director can be liable under Section 141 of the Act. The averments in the complaint would also serve the purpose that the person sought to be made liable would know what is the case which is alleged against him. This will enable him to meet the case at the trial. ( 15. ) In K.K. Ahuja v. V.K. Vora another, 2009 3 RCR(Cri) 571, it has been held as under: 20. The position under section 141 of the Act can be summarized thus: (i) If the accused is the Managing Director or a Joint Managing Director, it is not necessary to make an averment in the complaint that he is in charge of, and is responsible to the company, for the conduct of the business of the company. It is sufficient if an averment is made that the accused was the Managing Director or Joint Managing Director at the relevant time. This is because the prefix 'Managing' to the word 'Director' makes it clear that they were in charge of and are responsible to the company, for the conduct of the business of the company. (ii) In the case of a director or an officer of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bject all and sundry to be impleaded as accused in a complaint against a company, even when the requirements of section 138 read and section 141 of the Act are not fulfilled. ( 16. ) An Harshendra Kumar D. v. Rebatilata Koley etc., 2011 1 RCR(Cri) 887it has been held as under:-- 18. On March 4, 2004, the Company informed the Registrar of Companies in the prescribed form (Form No. 32) about the resignation of the appellant from the post of Director of the Company and, thus, change among directors. 19. The above documents placed on record by the appellant have not been disputed nor controverted by the complainants. As a matter of fact, it was not even the case of the complainants before the High Court that the change among Directors of the Company, on resignation of the appellant with effect from March 2, 2004, has not taken place. The argument on behalf of the complainants before the High Court was that it was not permissible for the High Court to look into the papers and documents relating to the appellant's resignation since these are the matters of defence of the accused person and defence is a matter for consideration at the trial on the basis of evidence which cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defence of the accused or embark upon an enquiry in respect of merits of the accusations. However, in an appropriate case, if on the face of the documents - which are beyond suspicion or doubt - placed by accused, the accusations against him cannot stand, it would be travesty of justice if accused is relegated to trial and he is asked to prove his defence before the trial court. In such a matter, for promotion of justice or to prevent injustice or abuse of process, the High Court may look into the materials which have significant bearing on the matter at prima facie stage. ( 17. ) The genuineness, admissibility, validity, legality and bona fide, of the resignations of the petitioners-Kailash Chand Jain, Paresh Jain and Rakesh Kumar Jain, or its effect, will be seen by the trial Court after the evidence is led by the parties. It requires full trial. The petitioner did not reply to the notice of demand. There are prima facie allegations against the petitioners in the impugned complaints and thus, there is no illegality or infirmity in the impugned summoning orders. ( 18. ) Because there are disputed questions of facts involved in the present matter, this Court does not deem it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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