TMI Blog2023 (5) TMI 324X X X X Extracts X X X X X X X X Extracts X X X X ..... s and their Receipts have also been executed and signed by these petitioners. The petitioner Vipul Kant Upadhyay was also one of the guarantors in these loan agreements. Moreover, he was the Managing Director of the accused company at the time of entering into the loan agreements and issuing several cheques. Even if the plea of learned counsel for petitioners that blank signed cheques or post-dated cheques were misused by the complainant is concerned, in this context, it will be relevant to take note of the decision of Hon ble Apex Court in BIR SINGH VERSUS MUKESH KUMAR [ 2019 (2) TMI 547 - SUPREME COURT ] where it was held that If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence. The material on record also shows clearly that the petitioner Amit Kumar Gupta was a Whole-time Director of the accused company at the time of entering into the transactions with the accused company and it is not the case of pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Through: Mr. Kunal Madan and Mr. Shyam Babu, Advocates Respondent Through: Mr.Vivek Bhagat, Advocate JUDGMENT SWARANA KANTA SHARMA, J. 1. This judgment shall govern the disposal of CRL.M.C. 2456/2019, CRL.M.C. 4378/2019 and CRL.M.C. 4379/2019, along with pending applications, arising out of similar set of facts, contentions and prayers. 2. By way of above-captioned petitions filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter Cr.P.C. ), the following reliefs have been sought: i. In CRL.M.C. 2456/2019, the petitioner seeks quashing of summoning order dated 21.03.2018 passed by learned Metropolitan Magistrate-1, Patiala House Court, New Delhi and proceedings pursuant thereto in Complaint Case No. 7944/2018 titled as The Delhi Safe Deposit Company v. IAP Company Pvt. Ltd ; ii. In CRL.M.C. 4378/2019, the petitioners seek quashing of summoning order dated 14.12.2017 passed by learned Metropolitan Magistrate-1, Patiala House Court, New Delhi and proceedings pursuant thereto in Complaint Case No. 6719/2018 titled as The Delhi Safe Deposit Company v. IAP Company Pvt. Ltd . iii. In CRL.M.C. 4379/2019, the petitioners s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .09.2016, the accused company had issued cheque bearing no. 891566 dated 26.11.2017 and cheque bearing no. 891568 dated 26.01.2018, of Rs. 2,33,750/- each, both drawn on HDFC Bank at C-5/32, Safdarjung Development Area, New Delhi-110016 in favour of the complainant. Upon presentation for encashment, the cheque bearing no. 891566 dated 26.11.2017 was returned unpaid vide return memo dated 30.11.2017 with the remarks Funds Insufficient . The statutory legal notice dated 04.12.2017 was sent by the complainant through Speed Post to the accused persons demanding payment of the cheque amount of Rs. 2,33,750/- vide postal receipt dated 05.12.2017 and the notice was served upon the accused, as per Internet Acknowledgment. Similarly, the cheque bearing no. 891568 dated 26.01.2018 was also returned unpaid vide return memo dated 30.01.2018 with the remarks Funds Insufficient . The complainant had sent a legal notice dated 01.02.2018 through Speed Post to the accused persons demanding payment of the cheque amount of Rs. 2,33,750/- vide postal receipt dated 06.02.2018 and the notice was served upon the accused, as per Internet Acknowledgment. Having not received any payment from the accused p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under: 138. Dishonour of cheque for insufficiency, etc., of funds in the account Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dairy v. Dr. Snehalatha Elangovan 2022 SCC OnLine SC 1238 , while analysing Section 141 of the Act, had observed as under: 26. While the essential element for implicating a person under sub-section (1) is his or her being in charge of and responsible to the company in the conduct of its business at the time of commission of the offence, the emphasis in sub-section (2) is upon the holding of an office and consent, connivance or negligence of such officer irrespective of his or her being or not being actually in charge of and responsible to the company in the conduct of its business. Thus, the important and distinguishing feature in sub-section (1) is the control of a responsible person over the affairs of the company rather than his holding of an office or his designation, while the liability under sub-section (2) arises out of holding an office and consent, connivance or neglect. While all the persons covered by sub-section (1) and subsection (2) are liable to be proceeded against and also punished upon the proof of their being either in charge of and responsible to the company in the conduct of its business or of their holding of the office and having been guilty of consen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the day to day business of the company and that they shall be liable for any criminal proceedings under the NI Act or any civil proceedings arising due to dishonoring of the cheques issued by them. 13. The petitioner Vipul Kant Upadhyay was also one of the guarantors in these loan agreements. Moreover, he was the Managing Director of the accused company at the time of entering into the loan agreements and issuing several cheques. Even if the plea of learned counsel for petitioners that blank signed cheques or post-dated cheques were misused by the complainant is concerned, in this context, it will be relevant to take note of the decision of Hon ble Apex Court in Bir Singh v. Mukesh Kumar (2019) 4 SCC 197, reiterated in Oriental Bank of Commerce v. Prabodh Kumar Tiwari 2022 SCC OnLine SC 1089, whereby it was held that: 33. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not the certified copies issued by the Ministry of Corporate Affairs. Secondly, as already observed in preceding discussion, the complainant has carved out the specific role of these petitioners in obtaining loans, executing loan agreements as well as in signing and issuing cheques in question. The veracity of the allegations and the genuineness of the documents pertaining to alleged resignation of these petitioners before the dishonor of cheques cannot be tested at this stage before this Court and the same has to be decided on the basis of relevant documents and evidence to be produced at the stage of trial. If the plea of petitioners is accepted that since they were not a part of the accused company at the time when cheques were dishonoured, proceedings against them be quashed at the outset, it would in fact, amount to throttling the trial by snatching away the right of respondent to examine during before the Court, the signatory of the cheques as well as signatory of the loan agreements, board resolutions and other documents in that regard. 17. As far as petitioner Mahender Singh is concerned, he was appointed as a Director in the accused company on 17.10.2017. The cheques i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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