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TMI Blog2021 (10) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... h General Power of Attorney Mr.Shubhrendu Saxena. It is contended that various allegations are made with regard to the original complainants having entered into certain transactions with a company registered under the name of M/s Prisha Properties (India) Private Limited which has been arraigned as accused no.1. It is stated by the complainants that they have entered into certain transactions with the company with regard to the purchase of a property and as the transaction did not go further, the complainants opted for the exit option and were thereafter issued the cheques impugned in the present complaint. 3. Mr. Narendra Jain, learned advocate for the petitioners submitted that admittedly, these three cheques have not been signed by the petitioners. The complaint in its entire body does not refer to the fact that the signatory of the complaint i.e. Mr.Shubherndu Saxena has personal knowledge of the facts of the case. Said cheques came to be dishonoured on 28/11/2018 and after issuance of notice, impugned complaint has been registered. Mr. Jain, learned advocate submitted that Learned Magistrate has not applied judicial mind to the complaint and instead chose to issue process aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned advocate for the petitioner further stated that the documents which has been referred herein by the complainants have not been produced before the trail court judge in support of the complaint. 7. Mr. Jain, learned advocate has also referred to the case of K.K.Ahuja vs. V. K. Vora and another reported in (2009) 10 SCC 48 wherein the Apex Court has laid down the position under Section 141 of the NI Act to support so, further reliance has been placed in case of Nikhil P. Gandhi vs. State of Gujarat reported in 2016 (4) GLR 2838, Vijay Dhanuka and others vs. Najima Mamtaj and others reported in (2014) 14 SCC 638 has been referred to submit that requirements under Section 202 of the Criminal Procedure Code has not been followed by the learned trial court judge, since the accused in the matter are not resident of the territorial jurisdiction of the Court. 8. Countering the arguments, Mr. Rajan Deliwala, learned advocate for the respondents nos.2 and 3 submitted that there are two complainants in the Criminal Case No.4448 of 2019 and they are represented by power of attorney holder and stated that the stage is yet not arise for adducing the evidence of the complainant and complaina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce Ltd. through Punjab National Bank, Jayanagar, Bangalore branch had issued a Demand Draft No.953997 dated 26/07/2017 for Rs. 99,92,700/- in favour of Prisha Properties Private Limited, accused no.1. 13. Referring to all the terms and conditions of the agreement of sale, reproduced in the complaint, Mr. Deliwala submitted that specific allegations have been made against the accused, who have failed and neglected to abide by the clause-6 of the agreement of sale. There are clear malafide intention to deceive and dupe the complainants and to misappropriate the complainant's money. He also stated that the complainant has made averments as to how the complainants were compelled to exercise the "option to exit" as provided in clause-9 of the agreement of sale. The complainant has averred about having sent "what's up message" sent to the accused in the complaint which would be part of the evidence during the course of the trial and by way of agreement of sale dated 30/09/2018, all the accused become liable to the complainants for the buyback amount, in addition to the PRE-EMIS, which accused have been defaulting. 14. Mr. Deliwala, learned advocate stated that necessary avermen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ieve that at the relevant point of time he was holding any key post attached to the affairs and conduct of the business of the company. The learned Judge further found that there was no specific pleading against the accused no.2 nor found any pleading that accused no.2 was signatory to the impugned cheque. After making relevant observation with regard to other co-accused, summons was issued against accused nos.1, 3, 4, 6 and 7 under Section 204 of the Indian Penal Code read with Section 138 and 141 of the Negotiable Instruments Act. 17. The learned Trial Court Judge thus gave specific reasons why he considered issuance of summons against present petitioners who are accused nos.3 and 4 in the complaint. The learned Judge did not find fit to issue any summons against the accused nos.2 and 5. The learned Judge also did not find any specific averments in the complaint nor find any documentary evidence to support the cause and to believe that accused no.5 was holding any key post attached to the affairs and business of the company. 18. Section 141 of the Negotiable Instruments Act is reproduced herein under: "141 Offences by companies. -- (1) If the person committing an offence u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the company who signed the cheque on behalf of the company, there is no need to make a specific averment that he was in charge of and was responsible to the company, for the conduct of the business of the company or make any specific allegation about consent, connivance or negligence. The very fact that the dishonoured cheque was signed by him on behalf of the company, would give rise to responsibility under sub-section (2) of Section 141. (iii) In the case of a Director, Secretary or Manager (as defined in Sec. 2(24) of the Companies Act) or a person referred to in clauses (e) and (f) of section 5 of Companies Act, an averment in the complaint that he was in charge of, and was responsible to the company, for the conduct of the business of the company is necessary to bring the case under section 141(1). No further averment would be necessary in the complaint, though some particulars will be desirable. They can also be made liable under section 141(2) by making necessary averments relating to consent and connivance or negligence, in the complaint, to bring the matter under that sub-section. (iv)Other Officers of a company can not be made liable under sub-section (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion (2) of Section 141 of the NI Act, by averring in the complaint their position and duties in the company and their role in regard to the issue and dishonour of the cheque, disclosing consent, connivance or negligence. 23. Here, in this case, the learned Trial Court Judge, has specifically dealt with the averments made by the complainant and the documents referred and has categorized the role of each of the accused before ordering issuance of the summons against accused nos.1, 3, 4, 6 and 7 of the complaint. Role of the petitioner nos.1 and 2 as accused nos.3 and 4 has been specified in the complaint and the learned Judge has taken cognizance of the fact and as rightly issued the summons against those accused. 24. Further, learned advocate for the petitioners has raised the issue about issuance of process against the accused persons under Section 202 of the Criminal Procedure Code beyond the territorial limits of the Court. Those are issues not required to be dealt with under Section 482 of the Criminal Procedure Code. 25. Thus, this Court does not find any reason to interfere in the matter. In the result, present application is dismissed. Notice stands discharged. Interim re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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