2020 (12) TMI 137
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....nd distribution of GSM and CDMA mobile handsets, data cards, smart phones, LED TVs, Air-Conditioners etc. M/s Beyond Tele Private Limited entered into a Distributorship Agreement dated 12.02.2016 with M/s Micromax Informatics Limited (complainant/respondent no. 1 herein) on the basis of which they became an authorized distributor on non-exclusive basis. During the course of business, it was alleged by the complainant company that M/s Beyond Tele Private Limited had an outstanding balance of Rs. 24,00,878.56/- against which it issued a cheque bearing no. 279362 dated 06.03.2019 for an amount of Rs. 24,00,878/- drawn on Axis Bank Ltd. However, on presentation, vide return memo dated 08.03.2019, the said cheque was returned unpaid due to the reason "payment stopped by the drawer". The complainant company issued a legal notice dated 29.03.2019 to M/s Beyond Tele Private Limited as well as its directors i.e., the present petitioner and her husband Krishan Gopal Goyal. A reply to the legal notice on behalf of M/s Beyond Tele Private Limited as well as its directors was also sent. Simultaneously, M/s Beyond Tele Private Limited also issued a legal notice through its director Krishan Gopal....
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.... submitted that necessary averments in terms of the offence punishable under Section 141 N.I. Act have been made. It was also contended that the defence taken by the petitioner is a question of fact, which cannot be gone into in the present petition. In support of his submissions, learned counsel has referred to the decisions rendered in K.K. Ahuja (Supra), Standard Chartered Bank v. State of Maharashtra and Others reported as (2016) 6 SCC 62, HMT Watches Limited v. M.A. Abida and Another reported as (2015) 11 SCC 776 and Lata Agrwal v. Micromax, in CRL.M.C No. 1215/2017 decided on 20.02.2018. 6. I have heard learned counsels for the parties and have also gone through the case records. 7. So far as the contention whether the cheque was given towards the security or discharge of legal liability is concerned, the same came up before this Court in M/s Chesons Enterprises v. M/s Cadiz Pharmaceuticals Pvt. Ltd. in CRL.M.C. 2149/2020 decided on 09. 11.2020, wherein it was held as under:- "9. Whether the cheque in question was issued towards the security and not towards any debt or liability is a matter of defence which could be determined in the trial on the petitioner adducing his e....
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..... Anu Mehta and Others reported as (2015) 1 SCC 103, where while referring to its earlier decision in K.K. Ahuja (Supra), the Supreme Court summarised its conclusions, which were also later reiterated in Standard Chartered Bank (Supra), as under:- "34. We may summarise our conclusions as follows: 34.1. Once in a complaint filed under Section 138 read with Section 141 of the NI Act the basic averment is made that the Director was in charge of and responsible for the conduct of the business of the company at the relevant time when the offence was committed, the Magistrate can issue process against such Director. 34.2. If a petition is filed under Section 482 of the Code for quashing of such a complaint by the Director, the High Court may, in the facts of a particular case, on an overall reading of the complaint, refuse to quash the complaint because the complaint contains the basic averment which is sufficient to make out a case against the Director. 34.3. In the facts of a given case, on an overall reading of the complaint, the High Court may, despite the presence of the basic averment, quash the complaint because of the absence of more particulars about the role of the Dire....
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....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 of the Court. [See Gunmala Sales (P) Ltd. v. Anu Mehta]." 12. In the present case, it is seen that in the legal notice issued by complainant company, a bald assertion was made that the co-accused i.e., Krishan Gopal Goyal (petitioner's husband) along with the petitioner had approached the complainant company for being appointed as their authorized distributor and subsequently, at the time when products were provided, they were received/acknowledged by M/s Beyond Tele Private Limited through both of its directors and other representatives. It was also stated that M/s Beyond Tele P....