TMI Blog2018 (7) TMI 1602X X X X Extracts X X X X X X X X Extracts X X X X ..... s are concerned, do not pass the muster of the requisite basic averments - petitions are allowed - decided in favor of petitioners. - CRL.M.C. 334/2016 & CRL.M.A.1446/2016, CRL.M.C. 346/2016 & CRL.M.A. 1463/2016, CRL.M.C. 347/2016 & CRL.M.A.1465/2016,CRL.M.C. 348/2016 & CRL.M.A.1467/2016, CRL.M.C. 349/2016 & CRL.M.A. 1469/2016, CRL.M.C. 350-352/2016 & CRL.M.A. 1471/2016, - - - Dated:- 23-7-2018 - MR. R.K. GAUBA J. Petitioner Through: Mr. J.K. Das, Sr. Adv. with Ms. Varuna Bhanrale and Ms. Vatsala Kumar, Advocates Respondent Through: Mr. Rishi Manchanda, Advocate with Ms. Divya Singh, Advocate J U D G M E N T 1. On 30/31.01.2014, certain criminal complaints were filed in the court of the Metropolitan Magistrate by the respondent, each seeking prosecution of the parties, including the petitioners herein for offences punishable under Section 138 of the Negotiable Instruments Act, 1881, they including criminal complaint nos.440-443/1/14 from which the present petitions arise. Each of the said criminal complaints were directed against several persons including a company described as M/s. Bush Foods Overseas Pvt. Ltd. It may be added here that Mr. Rahul Shivam and M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the said subsequent rulings being in a slightly different context. 7. It may be mentioned herein that the petitioners before this court had also been facing similar criminal prosecution for offences again under Section 138 of the Negotiable Instruments Act, 1881 in altleast eleven other criminal complaints, though they having been filed at the instance of two other complainants. On their revision petition in the context of the said other criminal complaints, the proceedings against them in those cases were dropped by the court of Sessions accepting their above noted plea. The said order of dropping of proceedings by the revisional court were challenged by the complainants of those other eleven cases by a batch of twenty-nine other petitions under Section 482 Cr.P.C., led by Crl.M.C. No.3257/2016 before this court. The said batch of twenty-nine other similarly placed petitions, giving rise to similar questions of law is being decided by a common judgment of even date. 8. These matters pertain to the penal clause contained in Section 138 of the Negotiable Instruments Act, 1881, which reads thus :- 138. Dishonour of cheque for insufficiency, etc., of funds in the accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the notice of demand which constitutes the offence that is punishable under the aforementioned provision of law. 10. There is no dispute as to the fact that for dealing with cases involving companies and the persons connected thereto as the accused, the provision of Section 141 of the Negotiable Instruments Act, 1881 is relevant. The above quoted provision of law has been the subject matter of interpretation by this court and in various rulings of the Supreme Court, particularly, three cases mentioned above. On basis of principles laid down in the said cases, i.e., SMS Pharmaceuticals (supra), Gunmala Sales (P) Ltd. (supra) and Standard Chartered Bank (supra), this court has culled out the guidelines in the judgment of even date in Crl.M.C.3257/2016, titled Jwala Devi Enterprises Pvt. Ltd. vs. Fadi El Jaouni, Etc., as under:- 14. The guiding principles with reference to Section 141 of the Negotiable Instruments Act, 1881, which are now well settled by judicial pronouncements, some of which have been noted above, may be summarised thus :- (i). It is only those persons who are in charge of, or responsible for the conduct of the business, of the company at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of nor responsible for the conduct of the business of the company at the time the offence was committed and thereby showing a case that making him stand the trial would be an abuse of the process of court, but not otherwise. 11. A perusal of four complaints from which the present petitions arise reveals that they are founded on almost identical averments, exception being with regard to the particulars of the cheques or the background facts against which they had been issued or the dates on which they were presented or dishonored leading to demand notices in their respect being issued, there being no payment made pursuant to such demand notices. The averments crucial to pass the muster of Section 141 of the Negotiable Instruments Act, 1881, however, are identically worded in the said four cases. For illustration, the crucial averments appearing in one of such complaints (Crl. Complaint No.440/1/2014), it being the first in chronology (Crl.M.C. 348/2016), may be extracted as under :- 2. That the accused no.1 is a Pvt. Ltd. company which is run and managed by accused no.2 to 6, being its directors and authorized signatory/M.C./C.F.O. in the name and style of M/s. Bush Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al of the above-quoted averments that they are deficient to the effect that there is not even a whisper of allegation that the petitioners are persons who were in charge of or responsible to the company accused for the conduct of its business at the time the offence was committed . 13. The petitioners are not stated to be signatories to the cheques in question. They cannot be roped in merely because they have been directors of the company accused. The general averments that they were responsible for all the business dealings and for the circumstances leading to the dishonour of the cheques or that they had given any assurance as to the cheques, do not suffice. 14. The view taken by the revisional court, therefore, cannot be upheld. The complaint cases, in so far as these petitioners are concerned, do not pass the muster of the requisite basic averments. 15. Thus, the petitions are allowed. The impugned order of the Sessions Court to the extent thereby the revision petitions of the petitioners were dismissed with reference to the aforementioned four criminal cases is set aside. The proceedings against the petitioners in the four criminal complaint cases (CC Nos.440/1/14 to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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