TMI Blog2014 (2) TMI 1368X X X X Extracts X X X X X X X X Extracts X X X X ..... ake out a case for quashing of the summoning orders dated 15.11.2011, 15.11.2011, 06.03.2012, 07.12.2011, 31.05.2012 and 30.11.2011 respectively - petition dismissed. - CRL. M.C. 432/2013, 433/2013, 434/2013, 435/2013, 436/2013, 437/2013, - - - Dated:- 4-2-2014 - HON'BLE MR. G.P.MITTAL, J. For the Appellant: Mr. Arun Sukhija, Mr. Rohit Shankar, Adv. For the Respondents: Nemo JUDGMENT G. P. MITTAL, J. (ORAL) CRL M.A.1365/2013 (Exemption) in CRL. M.C. 432/2013 CRL M.A.1380/2013 (Exemption) in CRL. M.C. 433/2013 CRL M.A.1382/2013 (Exemption) in CRL. M.C. 434/2013 CRL M.A.1386/2013 (Exemption) in CRL. M.C. 435/2013 CRL M.A.1388/2013 (Exemption) in CRL. M.C. 436/2013 CRL M.A.1390/2013 (Exemption) in CRL. M.C. 437/2013 Exemption allowed, subject to all just exceptions. The Applications are allowed CRL. M.C. 432/2013 CRL. M.C. 433/2013 CRL. M.C. 434/2013 CRL. M.C. 435/2013 CRL. M.C. 436/2013 CRL. M.C. 437/2013 1. By virtue of these six Petitions (being Crl.M.C. Nos.432/2013, 433/2013, 434/2013, 435/2013, 436/2013 437/2013) the Petitioners, invoke inherent powers of the Court under Section 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irety do not constitute the offence alleged. The Supreme Court relying on its earlier decision in State of West Bengal v. Swapan Kumar Guha (1982) 1 SCC 561 held that the Court will not normally interfere with the investigation and will permit an inquiry into the alleged offence to be completed. Paras 8 and 9 of the report are extracted hereunder:- 8. It is true that the inherent powers vested in the High Court under Section 482 of the Code are very wide. Nevertheless, inherent powers do not confer arbitrary jurisdiction on the High Court to act according to whims or caprice. This extraordinary power has to be exercised sparingly with circumspection and as far as possible, for extraordinary cases, where allegations in the complaint or the first information report, taken on its face value and accepted in their entirety do not constitute the offence alleged. It needs little emphasis that unless a case of gross abuse of power is made out against those in charge of investigation, the High Court should be loath to interfere at the early/premature stage of investigation. 9. In State of W.B. v. Swapan Kumar Guha (1982) 1 SCC 561, emphasising that the Court w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceived as part payment on 22.4.2011 of an amount ₹ 3,50,000/- vide cheque No.955758. Thereafter the Complainant was still entitled to an amount of ₹ 89,16,140/- as on that day. However, thereafter once again the accused person stopped making any payment to the Complainant reiterating earlier false assurances and promise. It is pertinent to note that in the last week of May, 2011 that on repeated perusals, the accused No.4 informed the complainant that the latter would be sending some post dated cheques for the payment towards the outstanding amount. Thereafter, in the first week of June, 2011, the accused through their employee sent six post dated cheques towards the part payment of the outstanding amount and the same were received by the Complainant at its office in Delhi. The details of the cheques sent by the accused are as follows:- S.No. Cheque Number/Drawn on Dated Amount 1 955775, Oriental Bank of Commerce Jagadhri Road, Yamuna Nagar 10.08.2011 10,00,000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t every Director knows about the transaction. (ii) Section 141 does not make all the Directors liable for the offence. The criminal liability can be fastened only on those who, at the time of the commission of the offence, were in charge of and were responsible for the conduct of the business of the company. (iii) Vicarious liability can be inferred against a company registered or incorporated under the Companies Act, 1956 only if the requisite statements, which are required to be averred in the complaint/petition, are made so as to make the accused therein vicariously liable for offence committed by the company along with averments in the petition containing that the accused were in charge of and responsible for the business of the company and by virtue of their position they are liable to be proceeded with. (iv) Vicarious liability on the part of a person must be pleaded and proved and not inferred. (v) If the accused is a Managing Director or a Joint Managing Director then it is not necessary to make specific averment in the complaint and by virtue of their position they are liable to be proceeded with. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch was referred to in Fateh Chand Bhansali. 9. Turning to the facts of the instant case, there are specific averments that the Petitioners negotiated for the purchase of goods by Pragati and they were responsible for the day to day affairs and conduct of the business of the company. It was specifically stated that the goods were supplied from April, 2010 to November, 2010. It was further stated that certain payments were made in the year 2010 and 2011. It was the complainant case that the post dated cheques in question were sent in the first week of June, 2011 and that the same were dishonuored on presentation. Thus, as per the averments made in the complaint, the cheques were delivered much before the Petitioners' resignation. All the transactions are related to the period when the Petitioners were Directors, and as stated above, according to Respondent No.1 (the complainant) they had negotiated with regard to supply of goods. Of course, copy of Form No.32 in case of Petitioner Ved Prakash Gupta reveals that the resignation was sent to the ROC on w.e.f. 20.7.2011. Assuming that it was received immediately after 20.07.2011, the question for consideration is, eve ..... X X X X Extracts X X X X X X X X Extracts X X X X
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