TMI Blog2018 (12) TMI 956X X X X Extracts X X X X X X X X Extracts X X X X ..... and Crl.M.A.17544-17545/2016, CRL.M.C. 4216/2016 and Crl.M.A.17562-17563/2016 - - - Dated:- 30-11-2018 - MR. R.K. GAUBA J. Petitioner Through: Mr. Tanmaya Mehta, Advocate with Mr. Rajeev Aggarwal, Mr. Sidhant Kr. Singh Mr. Raghav Wadhwa, Advocates Respondents Through: Mr. Manoj Sharma, Advocate with Mr. Kapil Kaushik, Mr. Alok Singh Mr. Deepak Shukla, Advocates ORDER (ORAL) 1. On the criminal complaint instituted by the respondent on 07.11.2014. The petitioners and certain others were summoned by the Metropolitan Magistrate, vide order dated 17.01.2015, on the accusations of offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short N.I.Act ) having been committed qua a cheque drawn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Ors., (2016) 6 SCC 62; and a ruling of this Court reported as Jwala Devi Enterprises P. Ltd. vs. Fadi EL Jaouni, 2018 SCC OnLine Del 10030 . 4. The petitioners point out, and the counsel for the respondent fairly conceded that the allegations as to the status, role and connection of the petitioners with the company accused M/s. Vision Pipes Pvt. Ltd. were set out in (paras 4 and 18 of) the criminal complaint to the following effect:- 4. That the accused No.2 to 5 are directors of the accused No.1 and in charge of and responsible for the day-to-day affairs and conduct of the business of the accused No.1. 18. The above mentioned cheque was issued by the accused No.1 in partial discharge of the above mentioned liability tow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 482 Cr.P.C., leaving the questions to be answered by the trial court. 7. In Jwala Devi Enterprises (Pvt.) Ltd. (supra) the provision of penal clause contained in under Section 138 of the Negotiable Instruments Act, 1881 was construed as under:- 6. It is clear from the plain reading of the above quoted provision and is now also well settled that the offence under Section 138 of the Negotiable Instruments Act does not stand constituted merely upon dishonor of a cheque. The dishonor of a cheque which had been issued by the person (who is sought to be prosecuted) in favour of the complainant must be followed by a notice of demand within the stipulated period. It is the non-payment of the amount of the cheque within the statut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst in terms of Section 141; (iv). Merely because a person is a director of the company is not sufficient to make him liable under Section 141, there being no deeming that by holding such position he is in charge of, or responsible for the conduct of the business of, the company within the meaning of Section 141; (v). It is necessary for the complainant to specifically aver in the complaint that at the time the offence was committed, the person sought to be prosecuted was in charge of, or responsible for the conduct of the business of, the company in terms of Section 141, there being no need for further particulars to be given in the complaint about his role, this being subject to proof at the trial; (vi). The person who h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eque and non-payment of the amount in favour of the complainant. The petitioners are not stated to be signatories of the cheque in question. They cannot be roped in merely because they have been directors of the company. The general averments about they being responsible for the business dealings of the company do not suffice as there is nothing shown that they were in charge of or responsible to the company accused for the conduct of its business at the time the offence was committed . 10. In the result the petitions are allowed. The orders dated 06.09.2016 passed in Criminal Revision Petition Nos.10-12/2016 and order dated 04.04.2016 passed in CC No.461/2016 are hereby set aside. The proceedings in the criminal case referred to above ..... X X X X Extracts X X X X X X X X Extracts X X X X
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