TMI Blog2022 (11) TMI 281X X X X Extracts X X X X X X X X Extracts X X X X ..... with Mr Vikas Walia, Mr Pravir Singh and Ms Adya R Luthra, Advocates. Respondent Through: Mr Abhishek Vikram and Mr Mayank Mukerjee, Advocates. POONAM A. BAMBA, J.: 1.0. This is a petition under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C) seeking quashing of the summoning order dated 24.11.2021 ( impugned order in short) passed by Learned MM (NI) Act, Saket Courts, New Delhi against the petitioner herein in case titled Minions Venture Pvt. Ltd vs Garage Cowork Pvt. Ltd and Ors. bearing CC No. 5441/2021, for the offences under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881 ( NI Act in short) and the proceedings emanating therefrom 2.0. Let me at the outset refer to the impugned summoning order dated 24.11.2021, relevant portion of which reads as under : The instant complaint has been filed u/s 138 of Negotiable Instrument Act, 1881. . Arguments on the point of summoning heard. Further, the court has examined the documents filed by the complainant and is satisfied with regard to sufficiency of grounds to proceed against the accused as prescribed u/s 202 Cr.P.C. In the light of section 141 of Negotiable Inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the complainant company/respondent herein under his signatures on behalf and under instructions of the accused company towards security. However, the said cheque was filled in later, on 21.08.2021, when he had already resigned from the directorship on 17.07.2021. The said cheque on presentation was dishonoured on 24.08.2021 and was returned with remarks payment stopped by drawer . 3.3. Learned counsel for the petitioner argued that the legal notice of demand dated 18.09.2021 issued by the complainant was never delivered to the petitioner. Subsequently, the respondent filed criminal complaint dated 18.10.2021 under Section 138 read with Section 148 NI Act arraigning the petitioner, as one of the accused persons, merely because he was the signatory of the cheque in question. 3.4. The petitioner has challenged the impugned order mainly on the grounds that the learned Magistrate failed to appreciate that : (i) as the cheque was issued on a date (21.08.2021) subsequent to the petitioner s resignation as a director, the petitioner could not have been held vicariously liable under Section 141, in absence of any specific averment that he was in charge and responsible for day- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idents and foreign citizens. 4.4. Ld. counsel for the respondent also submitted that the petitioner did not even reply to the legal demand notice dated 18.09.2021, which was duly delivered to him by email. He did not, by way of reply, informed that he had resigned from the directorship of the accused company. Further, the fact that the petitioner has been deliberately avoiding the process of law, can be seen from the fact that the summons along with order dated 24.11.2021 issued to the petitioner, were refused to be accepted as has been duly stated in the affidavit of service filed by the respondent s counsel in the complaint case before the learned Magistrate. Same is also reflected from the delivery report of the Speed Post. 4.5. It is further submitted that the petitioner continues to be associated with the accused company as email address of the petitioner is the same, as the official e mail address of the accused company as registered with ROC (Annexure IV). It is also submitted that the petitioner s plea that the cheque issued by the petitioner is a security cheque or not, is inconsequential in view of the judgement of Hon ble Supreme Court in the case of Sripati Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section 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: 22 [Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter.] (2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21 for an amount of Rs. 1,33,67,470.88/- to the complainant towards discharge of its legal and written liability in terms of the Agreements for Transfer of Rights towards the Complainant; the accused no. 1, being primarily responsible for payment of receivables in the event of default of payment by the Customer and/or Affiliate. 7.3. The complaint also mentions that in order to recover the amount due and payable by the accused no. 1, the complainant/the respondent herein presented the aforesaid cheque bearing no. 000525 dated 21.08.2021 for an amount of Rs. 1,33,67,470.88/- to the authorized bank on 23.08.2021 which was returned unpaid upon presentation vide Cheque Return Memo dated 24.08.2021 due to reasons payment stopped by drawer . Another cheque dated 27.07.2021 bearing no. 000523 for a sum of Rs. 1,18,72,358/- issued by the Accused no. 1 to the complainant, was also presented by the complainant to its bank and the same was also dishonoured and returned with a return memo dated 28.07.2021 for the reason Funds Insufficient . In view of the same, the complainant/respondent had sent an e-mail notice dated 26.08.2021 to the accused persons including the petitioner for payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner s e-mail dated 19.07.2021 addressed to Elaine Tsung, the non-resident director of the accused company, shows that while conveying his decision to resign as a director of the accused company, the petitioner has stated that he was stepping down as he was receiving threats from KRW landlord for payment of rental and cheque bouncing and that police persons were visiting at his residence, which was causing threat to him and also putting tremendous pressure on his family. The Petitioner also mentioned in his mail that Once I resign as the Indian director, we would have 2 to 3 months time to appoint a new Indian Director. ..... I am still committed towards our on going funding process which is going on. I would be always available for all the discussions and support whenever. 9.3. Ld. Counsel for the respondent also drew attention of this Court to the fact that name of the petitioner still appears on the website of the accused company, as its country manager; the Petitioner s company email id, prashantgarg@thegaragesociety.com still appears on the MCA master data, which clearly show that the resignation submitted by the petitioner is simply a sham and tendered only t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Del 438 , wherein the court dealt with a plea of resignation prior to the presentation/dishonor of cheque issued by the director. The Apex Court observed : 9. Turning to the facts of the instant case, there are specific averments that the Petitioners negotiated for the purchase of goods by Pragati and they were responsible for the day to day affairs and conduct of the business of the company. . All the transactions are related to the period when the Petitioners were Directors, and as stated above, according to Respondent No. 1 (the complainant) they had negotiated with regard to supply of goods. . The question for consideration is, even if the resignation is presumed to have been received in the office of Registrar of Company immediately after 20.07.2011, can the Petitioner be absolved of his liability? If this is allowed, perhaps neither Director nor any officer of the accused company can ever be made liable, because they can enter into any transaction at their will, issue some post dated cheques and then tender their resignation before the date of its encashment. 9.5.2 Thus, the plea of the petitioner that he could not have been summoned as he had already resigne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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