TMI Blog2019 (12) TMI 927X X X X Extracts X X X X X X X X Extracts X X X X ..... in question. Since the document itself is forged, therefore, under no stretch of imagination, it can be held that the petitioner has been looking after day-to-day affairs of the company and is responsible for the offence under section 138 of the NI Act - In the present case, the signatures were not of the petitioner and because he had complaints regarding day-to-day business of the company, he resigned from the company on 22.02.2016, which is not in dispute, much prior to cheque issued on 10.11.2016. The complaint set aside - petition allowed. - CRL.M.C. 2028/2017 & Crl.M.A. 8340/2017 - - - Dated:- 11-12-2019 - MR. SURESH KUMAR KAIT J. Petitioner Through: Mr. Vipul Goel, Adv. Respondent Through: Mr. K. K. Ghai, APP for State Mr. Sanjeev Singh, Adv. with Mr. Prashant Tripathi Mr. Dhruv Malhotra, Advs. For R-2. JUDGMENT (ORAL) 1. Vide the present petition, the petitioner seeks direction thereby to set aside the order dated 10.01.2017 passed by learned MM-01, Patiala House Courts, Delhi for summoning the petitioner in CC No.433/2017 under section 138 of the Negotiable Instruments Act, 1881. 2. The brief facts of the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner 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 to cover lapses of Sh.Mohit Sharma and other officers of the respondent no.2, such as due diligence etc., the respondent no. 2 has falsely implicated the petitioner in the recovery proceedings of the loan. 7. He further submits that the petitioner has already filed a police complaint against the respondent no.2 for illegally cheating, blackmailing, forging documents, fraud, filing of false and fictitious case at Police Station Economic Offence Wing, Delhi. The petitioner has also filed a complaint for registration of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cting the business of the company. The proviso to Section 141 makes it further clear that nothing contained in sub-section (1) shall render any person liable to punishment, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence. The effect of reading Section 141 is that in a complaint case of dishonoured cheque when a company is principal offender for the offence u/s 138 NI Act, the person in charge of and responsible to the company for the conduct of its business are made offenders by virtue of legal fiction. 12. In addition to above, he submits that in the complaint filed under section 156(3) Cr.P.C. filed by the petitioner, the Trial Court vide order dated 16.09.2019 directed the SHO concerned to register an FIR based on the allegations against respondent no.2 and 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 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 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 of the Court. [See Gunamala Sales Private Limited v. Anu Mehta and Ors., (2015) 1 SCC 103] 10. A perusal of the record in the present case indicates that the appellant has specifically averred in his complaint that the respondent nos. 1 and 2 were actively participating in the day-to-day affairs of the accused no.1 company. Further, the accused nos. 2 to 4 (including the respondent nos. 1 and 2 herein) are alleged to be from the same family and running the accused no.1 company together. The complaint also specificies that all the accused, in active connivance, mischievously and intentionally issued the cheques in favour of the appellant and later issued instructions to the Bank to Stop Payment . No evidence of unimpeachable quality has been brought on record by the respondent nos. 1 and 2 to indicate that allowing the proceedings to continue would be an abuse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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