9911796707
TMI Blog2017 (12) TMI 1100X X X X Extracts X X X X X X X X Extracts X X X X ..... Catmoss Retail P. Ltd., (2) Mr. Nitin Chawla (petitioner herein) and (3) Mr. A.K. Chawla. It is stated in the complaint that the respondent No.1/complainant is a company duly incorporated under the Companies Act, engaged in the business of manufacturing and supply of buttons and rivets of various kinds and the accused No1/Company- M/s Catmoss Retail P. Ltd. is one of the customers of the respondent No.1. 3. It is alleged in the said complaint that the accused No.1- M/s Catmoss Retail Pvt. Ltd. is a private limited Company and accused No.2 (petitioner herein) and accused No.3 are its directors and are responsible for the day to day transactions of the accused No.1 Company as they are in actual control of the entire business of the accused No.1 Company. It is further alleged that the petitioner herein and the accused No.3 approached the respondent No.1/complainant for purchasing the material manufactured by them. Thereafter, the respondent No.1/complainant supplied the material to the said accused and raised an invoice for the last more than one year. It is further alleged that the accused persons have not been regular in making the payment of the material purchased by them and as p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2010 before this Court and this Court vide order dated 31.01.2014 dismissed the petition as withdrawn with liberty to the petitioner to urge all the pleas before the learned Trial Court at the time of arguments on the point of notice under Section 251 Cr.P.C. 9. Subsequently, the petitioner filed an application before the learned Metropolitan Magistrate, Tis Hazari, District Court, New Delhi for dropping of the proceedings against him in compliance of the judgment of this Court in CRL.M.C. 2598/2012 titles as Urrshilla Kerkar vs. Make My Trip (India) Pvt. Ltd. as well as in terms of the order dated 31.01.2014 passed by this Court in CRL.M.C. 506/2014 and the learned Metropolitan Magistrate vide order dated 21.06.2014 dismissed the said application of the petitioner for want of merit. Hence, the present petition. 10. The learned counsel for the petitioner has submitted that the petitioner-Nitin Chawla was not the Director of M/s Catmoss Retail Pvt. Ltd./accused No.1 at the relevant point of time and the respondent no. 1 had arrayed the petitioner as an accused stating him to be the director of the company. Therefore, the summoning order dated 10.12.2010 is bad in law and the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial facts from this Court. 14. The learned counsel for the respondent No.1 has further submitted that the respondent No.1 has filed documents on record to show that it was the petitioner who has signed the purchase order, payment advices and that also placed on record the affidavit of accused No.3, i.e. Mr. Ashwini Chawla, Managing Director of the accused company, which was filed by him in the civil suit filed by the respondent No.1. wherein the accused No.3 has stated in the said affidavit that the present petitioner is the director of the company and has been dealing with the respondent No.1. It is further submitted that even the Vakalatnama, filed by the counsel of the petitioner before the trial court shows that the petitioner has presented himself to be the director of the company. Therefore, the present petition is devoid of merit and is liable to be dismissed. 15. The whole dispute hinges around whether the petitioner is jointly & severally responsible for the day to day conduct of the business of the accused No.1-Company-M/s Catmoss Retail P. Ltd. as alleged by the respondent No.1/complainant in the complaint under Section 138 NI Act? 16. The allegations in the complaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liability. 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 business of the company without anything more is not a sufficient or adequate fulfilment of the requirements under Section 141." 19. Further, the Apex Court in the judgment reported as Girdhari Lal vs. D.H. Mehta & Anr.; (1971) 3 SCC 189 has already held that a person „in charge of the business' means that the person should be in overall control of the day to day business of the Company. 20. The instant petitions are arising out of the impugned orders dated 10.12.2010 and the order dated 21.06.2014 passed by the learned Metropolitan Magistrate (C-02), Delhi in CC. No. 707/RN/10. 21. The respondent No.1/complainant- M/s. Ahuja Creations Pvt. Ltd, had filed a complaint petition CC. No. 707/RN/10 under Section 138 of the Negotiable Instruments Act qua against the present petitioner relying on Form-32 of the Company, i.e. M/s Catmoss Retail P. Ltd. 22. The Form-32 relied upon by the respondent No. 1/complainant, in the complaint petition CC. No. 707/RN/10 filed un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the Company, i.e. M/s Catmoss Retail P. Ltd., it is not shown in the Form 32 of the Company. It is the case of the respondent No.1/complainant that the cheques in question were issued by the petitioner and the accused No.3- Mr. A. K. Chawla. There is no change of state of mind after the issuance of the two cheques in question by the accused No.3- Mr. A. K. Chawla, on the part of the petitioner which shows his ignorance about his liability by not replying to the notice dated 12.11.2010. The petitioner while taking the defence on notice under section 251 Cr.P.C. disputed his liability as nothing actus reus in furtherance of common acts constituting criminal liability on his person as he was not the director of the Company nor did he issued the cheques in question. 29. 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the parties cannot be permitted to put the criminal law into motion and Courts cannot be a mere spectator to it. Before a Magistrate taking cognizance of an offence Under Section 138/141 of the N.I. Act, making a person vicariously liable has to ensure strict compliance of the statutory requirements. The Superior Courts should maintain purity in the administration of Justice and should not allow abuse of the process of the Court. The High Court ought to have quashed the complaint against the Appellant which is nothing but a pure abuse of process of law." 32. This Court also in case Birthe Foster vs. State and Anr.; MANU/DE/9335/2006 has made the observation as under:- "3. It is clear that Section 138 refers to persons who issue cheques on accounts maintained by them. If the persons happen to be juristic persons such as companies then the provision of Section 141 would apply. By virtue of provision 141 not only the company which issues the cheque is made liable but, also the person who, at the time of the offence was committed, was in charge of and was responsible to the company for the conduct of the business of the company has been made liable along with the company. A readin ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
