TMI Blog2021 (4) TMI 285X X X X Extracts X X X X X X X X Extracts X X X X ..... restriction or to show that at the relevant time they were not in charge of the affairs of the Company. Further, the Hon ble Supreme Court in RAJESHBHAI MULJIBHAI PATEL AND OTHERS ETC. VERSUS STATE OF GUJARAT AND ANOTHER ETC. [ 2020 (2) TMI 412 - SUPREME COURT] has held that When disputed questions of facts are involved which need to be adjudicated after the parties adduce evidence, the complaint under Section 138 of the N.I. Act ought not to have been quashed by the High Court by taking recourse to Section 482 Cr.P.C. . Whether petitioner s employment with the accused-company was confined to maintenance of accounts or he was the Director or Authorized Signatory of accused-company and whether or not the cheque in question was signed by him or whether complainant is able to bring sufficient material before the court to rope in petitioner for the offence in question, are the aspects which can be established during trial, therefore, it would be against principles of law to arrive at a conclusion without going into the merits of the case - petition dismissed. - CRL.M.C. 1792/2020 & Crl.M.A.12554/2020 - - - Dated:- 6-4-2021 - HON'BLE MR. JUSTICE SURESH KUMAR KAIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss requirement of accused-company and the cheque in question was issued towards discharge of liability and accused tried to evade the legitimate payments of the complainant. According to the complainant, the cause of action had first arisen on the day of issuance of impugned cheque and further action arose when on presentation of cheque in bank, the same was dishonoured on 27.03.2017 and thereafter, when the accused failed to pay the cheque amount within 15 days of receipt of legal Demand Notice dated 12.04.2017. Hence, the complainant filed a complaint under Sections 138/141/142 of Negotiable Instruments Act, 1881 before the learned trial court for remedies as per law. 5. In the complaint so filed, the learned trial court, after going through the dates and events, evidence and documents on record as well as upon inquiry under Section 202 Cr.P.C., vide order dated 31.08.2017 held that prima facie offence under the Negotiable Instruments Act was made out against the accused and directed summoning of accused- company and its two Directors. 6. Against the aforesaid summoning order dated 31.08.2017, the Directors of the accused company filed application seeking discharge as well ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsible for day to day affairs of the company. It is next submitted that the learned trial court, while rejecting petitioner s application seeking discharge, has ignored the ratio of dictum laid down by the Hon ble Supreme Court in N.K.Wahi Vs. Shekhar Singh AIR 2007 SC 1454 and another decision of this Court in Urshila Kerkar Vs. Make My Tri 2013 SCC OnLine Del 4563 , however, has erroneously held that the only remedy available to the accused is to challenge the summoning order under Section 482 Cr.P.C. 10. Lastly, it was submitted that impugned summoning order dated 31.08.2017 as well as order dated 21.12.2019 are untenable in law and are liable to be set aside. 11. In the counter affidavit filed on behalf of respondent No.2/complainant herein i.e. Worlds Window Impex (India) Pvt. Limited through its representative, the stand taken in the complaint has been reiterated and it is stated that petitioner had represented himself as the key managerial person responsible for day to day operations of respondent No.3company i.e. Rathi Steel and Power Limited and had visited its office on several occasions to supply shredded steel scrap as per their requirements. Reliance is p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... copy of certificate dated 17.11.2017 issued from Bank of Baroda, Gandhi Nagar Branch, Ghaziabad, UP (Annexure-B) to substantiate this argument. It was, therefore, submitted that petitioner has no liability towards the complainant and hence, legal proceedings cannot be initiated against him. It was further submitted that respondent No.3 in its reply to the Legal Demand Notice has categorically stated that the accused / petitioner is not the Director of company, nor he is authorised to issue any cheque on its behalf and that the stolen forged cheque in question does not bear signature of any authorised person. Thus, the allegations that petitioner had issued and handed over cheque in question to complainant are false and after thought as no such averment has been made in the complainant in question. Accordingly, it is urged that the impugned orders deserve to be set aside. 16. The rival contentions raised by learned counsel for the parties have been heard at length and I have gone through the impugned orders and material placed on record. 17. The stand of complainant is that against supply of material to accused-company, two invoices bearing Nos.2080000493 and 2080000494 for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nk was returned vide Return Memo dated 27.03.2017 with the remark Account Blocked and thereafter, Legal Demand Notice dated 12.04.2017 was served upon the petitioner. 22. The copy of Company Master Data, as available on the website of the accused-company and relied upon by the petitioner, though pertains to the year 2019, but at the last page it mentions the name of petitioner under the category headed as Directors/Signatory Details and under another heading Begin Date it mentions the date 01.07.2015. Pertinently, the cheque in question is dated 27.12.2016. Hence, the claim of petitioner that he was not the Director of the accused company on the date of issuance of cheque comes under the clouds. Moreover, the complaint against theft of cheque is stated to have been registered in May, 2017 i.e. much after dishonouring of cheque by the Bank on 27.03.2017 and issuance of Legal Demand Notice dated 12.04.2017. Thus, possibility of an afterthought escape from liability cannot be ruled out. Moreover, extract of Form-14, Leave with Wages Register does reflect petitioner s name and also the date of entry into service as 01.07.2015 but the details mentioned therein pertains to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly be dealt with after the conclusion (sic commencement) of the trial. 25. Further, the Hon ble Supreme Court in a decision of 10.02.2020 in Rajeshbhai Muljibhai Patel Ors. Vs. State Of Gujarat Anr. 2020 (3) SCC 794 has held that When disputed questions of facts are involved which need to be adjudicated after the parties adduce evidence, the complaint under Section 138 of the N.I. Act ought not to have been quashed by the High Court by taking recourse to Section 482 Cr.P.C. . 26. Whether petitioner s employment with the accused-company was confined to maintenance of accounts or he was the Director or Authorized Signatory of accused-company and whether or not the cheque in question was signed by him or whether complainant is able to bring sufficient material before the court to rope in petitioner for the offence in question, are the aspects which can be established during trial, therefore, it would be against principles of law to arrive at a conclusion without going into the merits of the case. 27. In the light of above, I am not inclined to interfere in the orders passed by the learned trial court. The petition and pending applications are accordingly dismiss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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