TMI Blog2023 (7) TMI 760X X X X Extracts X X X X X X X X Extracts X X X X ..... r blank or issued as security cheques are all triable issues, to be decided upon leading evidence, and the same cannot be gone into by this Court at this stage. This Court deems it appropriate to refer to the decision of Hon ble Apex Court in case of Sunil Todi v. State of Gujarat [ 2021 (12) TMI 175 - SUPREME COURT] whereby it has been held The order of this Court in Womb Laboratories holds that the issue as to whether the cheques were given by way of security is a matter of defence. This line of reasoning in Womb Laboratories is on the same plane as the observations in HMT Watches, where it was held that whether a set of cheques has been given towards security or otherwise or whether there was an outstanding liability is a question of fact which has to be determined at the trial on the basis of evidence. The rationale for this is that a disputed question of this nature cannot be resolved in proceedings under Section 482 CrPC, absent evidence to be recorded at the trial. As apparent from the records of the case, the complainant in the complaint under Section 138 of NI Act has specifically averred that the accused company had issued the cheques in question and accused no. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opolitan Magistrate-03, Patiala House Courts, New Delhi and proceedings pursuant thereto in Complaint Case No. 7099/2018 titled as M/s. Indo Rama Synthetics Ltd. vs. M/s. GPI Textiles Ltd. Ors. iii. In CRL.M.C. 737/2020, the petitioners seek quashing of summoning order dated 06.07.2018 passed by learned Metropolitan Magistrate-03, Patiala House Courts, New Delhi and proceedings pursuant thereto in Complaint Case No. 7101/2018 titled as M/s. Indo Rama Synthetics Ltd. vs. M/s. GPI Textiles Ltd. Ors. 3. The petitioner nos. 1, 2, 3 and 4 before this Court in all three petitions have been arraigned as accused no. 5, 8, 9 and 10 in the three complaint cases filed by the respondent/complainant M/s. Indo Rama Synthetics Ltd. under Section 138 of Negotiable Instruments Act, 1881 (hereinafter NI Act ). 4. A perusal of the complaints filed under Section 138 of NI Act reveals that the accused company had approached the complainant, who was engaged in the business of manufacturing, marketing and supply of Polyester Staple Fibre, Partially Oriented Yarn, etc., for purchase of polyester staple fibre, and both the companies had entered into several transactions with each ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company was wrongly mentioned and therefore, these fresh complaints were being filed after due service of notice on the accused at the correct address. The learned Metropolitan Magistrate, vide order dated 06.07.2018 had issued summons to all the accused persons. 5. Aggrieved by the issuance of summons, the petitioners have approached this Court. 6. The case set out by the petitioners is that they are former Directors of the accused company and were only the Professional Nominee Directors of Investors. It is stated that accused company and the complainant company were engaged in business transactions for a long time and the accused company had issued blank undated cheques to the complainant as security cheques for future transactions on 30.12.2013. It is stated that after reviewing all the undated/post-dated cheques issued by the accused company to different parties, it had taken a policy decision on 20.04.2015 and had issued stop payment letter to SBI for cheques issued to all parties including complainant herein. It is stated that SBI had acknowledged the stop payment letter on 21.04.2015 and on the same date, the accused company had sent an intimation to the all the partie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the directors. Learned counsel for the petitioners also argues that though the complainant has averred that the cheques in question were issued with consent and connivance of all the accused persons, the petitioners were not even a part of the company at the time when blank/undated cheques were issued by the accused company. Thus, it is stated that the petitioners who were complete strangers to the company when cheques were issued and instructions for stop payment were given must not be compelled to undergo trial when no case is made out against them. On behalf of petitioners, reliance has been placed on the following case laws: National Small Industries Corp. Ltd. v. Harmeet Singh Paintal (2010) 3 SCC 330, N.K. Wahi v. Shekhar Singh (2007) 9 SCC 481, SMS Pharmaceuticals Ltd. v. Neeta Bhalla 2005 8 SCC 89. 8. Learned counsel for the respondent/complainant, on the other hand, argues that the complainant has complied with all the mandatory and statutory requirements under the NI Act while issuing legal notice and filing complaint under Section 138 NI Act. It is stated that in the legal notice as well as the complaint, specific allegations have been made against the present pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thin thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation . For the purposes of this section, debt of other liability means a legally enforceable debt or other liability, 141. Offences by companies. - (1) If the person committing insurance under section 138 in a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall 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: Provided further that where a person is nominated as a Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction (1) may, by virtue of the first proviso, escape only punishment if he proves that the offence was committed without his knowledge or despite his due diligence. (Emphasis supplied) 12. In the present case, learned counsel for the petitioners had argued that the petitioners had joined the accused company as directors on 23.09.2015, whereas the cheques in question had been issued on 30.12.2013 i.e. about two years prior to their joining. It was also argued that the instructions for stop-payment of the cheques were issued in April, 2015 i.e. about five months prior to the joining of petitioners as directors in the accused company. In this regard, this Court notes that the cheques in question are all dated 21.09.2017 i.e. about two years after the petitioners had joined the accused company as directors and had been dishonored on 01.12.2017. As regards the contention that the cheques were blank and undated when issued in the year 2013, and the same had later been filled and presented for encashment by the complainant, this Court notes that whether or not the cheques in question were undated or blank or issued as security cheques are all triable issues, to be decided upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, in the absence of evidence of exercise of undue influence or coercion. The second question is also answered in the negative. 36. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. (Emphasis supplied) 14. Further, it was also argued on behalf of petitioners that they were not incharge of the day-to-day affairs of the accused company and had been appointed only as Professional Nominee Directors of Investor, which was disputed by the learned counsel for complainant. In this regard, this Court has examined the documents placed on record, however, nothing has been filed on behalf of petitioners to support such contention. It has been stated in the petition that Annexure P-4 relates to appointment of present petitioners, but a perusal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taining the credibility of commercial transactions resulting in the enactment of Sections 138 and 141 respectively should be kept in mind by the Court concerned. *** (g) The power of quashing should be exercised very sparingly and where, read as a whole, the factual foundation for the offence has been laid in the complaint, it should not be quashed... * * * * 47. Our final conclusions may be summarised as under: a.) The primary responsibility of the complainant is to make specific averments in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no legal requirement for the complainant to show that the accused partner of the firm was aware about each and every transaction. On the other hand, the first proviso to sub-section (1) of Section 141 of the Act clearly lays down that if the accused is able to prove to the satisfaction of the Court that the offence was committed without his/her knowledge or he/she had exercised due diligence to prevent the commission of such offence, he/she will not be liable of punishment. *** d.) If any Director wants the process to be quashed by filing a petition u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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