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TMI Blog2019 (12) TMI 927X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2 -M/s Hero Fincorp Ltd. is a Non-Banking Finance Company, providing loan etc. and has filed a complaint against the petitioner/accused no.4, who is the director of M/s Vigyan Chemical Pvt. Ltd./accused no.1. The Court below was pleased to summon accused no.4 and one of the directors of M/s Vigyan Chemicals Pvt. Ltd. vide order dated 10.01.2017, whereby the learned Trial Court directed the petitioner to appear on 31.05.2017. 3. Counsel appearing on behalf of the petitioner submits that in the complaint, respondent no.2 has alleged that M/s Vigyan Chemicals Pvt. Ltd. was in need of some finance, accordingly approached the respondent no.2 for loan of Rs. 7,30,00,000/- which was sanctioned on 26.05.2015. In pursuance to the sanction letter, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irector of M/s Vigyan Chemicals Pvt. Ltd. on 22.02.2016. 5. Learned counsel submits that the petitioner received the copy of proceedings in the arbitration case filed by the respondent no. 2, the petitioner was shocked to see that there were no signatures of the petitioner on the Master Facility Agreement and he had not signed any Personal Guarantee. The signatures on the Personal Guarantee are false and fabricated. The petitioner is neither the signatory on the cheque dated 10.11.2016 nor had signed any loan document such as Master Facility Agreement, Supplementary Agreements or Personal Guarantee of the respondent no. 2 company. 6. It is further submitted that not having recovered loan from M/s Vigyan Chemicals Pvt. Ltd. and in order t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Managing Director or Joint Managing Director would be admittedly in charge of the company and responsible to the company for conduct of its business. When that is so, holders of such positions in a company become liable under Section 141 of the Act. By virtue of the office they hold as Managing Director or Joint Managing Director, these persons are in charge of and responsible for the conduct of business of the company. Therefore, they get covered under Section 141." 10. Learned counsel further submits that it is established law that the responsibility of an official of a company/ trust under Section 141 NI Act has been explained in a case of S.M.S. (supra) where it is held that it is necessary to specifically aver in the complaint that at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d directed to investigate the matter and also to investigate the role of Sanjay Jain along with other accused persons in the matter and to file report before the Court. Consequently, the FIR No.168/2019 dated 02.12.2019 has been lodged at Police Station, Vasant Vihar, Delhi for the offences punishable under sections 420/468 IPC. 13. On the other hand, learned counsel appearing on behalf of the respondent No. 2 submits that a cheque in question was issued when the petitioner was Director of M/S Vigyan Chemicals Pvt. Ltd. and he signed Master Facilities Agreement dated 27.05.2015 as well as four supplementary agreements. During the arbitration proceedings, the signature of the petitioner had been sent to FSL, however, the opinion of the Arbit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of the company's business at the time when the offence was committed. The High Court, in deciding a quashing petition under S. 482, Cr.P.C., must consider whether the averment made in the complaint is sufficient or if some unimpeachable evidence has been brought on record which leads to the conclusion that the Director could never have been in charge of and responsible for the conduct of the business of the company at the relevant time. While the role of a Director in a company is ultimately a question of fact, and no fixed formula can be fixed for the same, the High Court must exercise its power under S. 482, Cr.P.C. when it is convinced, from the material on record, that allowing the proceedings to continue would be an abuse of process ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther, the petitioner filed police complaint as well as complaint under section 156(3) Cr.P.C. to lodge FIR against respondent no.2 and same has been lodged vide FIR No.168/2019 dated 02.12.2019. On perusal of the order dated 16.09.2019, whereby the Trial Court directed to register FIR, it is revealed that as per the FSL report, the disputed signatures on the loan documents are different from the specimen signatures of the respondent no.2. Since as per the ATR, respondent no.2 had not signed the loan documents before proposed accused no.2 Mohit Sharma and he had only received the loan documents purportedly signed by the respondent no.2 from another director of the said company i.e. Sanjay Jain and since the loan amount was disbursed to the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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