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SUPREME COURT OF INDIA
SUDHANSU JYOTI MUKHOPADHAYA, N.V. RAMANA, JJ.
POOJA RAVINDER DEVIDASANI – APPELLANT
VERSUS
STATE OF MAHARASHTRA & ANR. – RESPONDENTS
CRIMINAL APPEAL NOS.2604-2610 OF 2014 ARISING OUT OF SPECIAL LEAVE PETITION (CRL) NOS. 9133-9139 OF 2010
Decided on: 17-12-2014
(2010) 3 SCC 330 – Relied upon
(b) Negotiable Instruments Act, 1881 – Section 138 and 141 – Liability of a Director – Must be shown as to how and in what manner the Director was responsible for the conduct of the business of the Company – Without a clear statement of fact supported by proper evidence of vicarious liability of the accused – Proceedings will be liable to be quashed. (Para 20, 21)
(1971) 3 SCC 189; (1981) 2 SCC 335; (2006) 10 SCC 581 – Relied upon
© Negotiable Instruments Act, 1881 – Section 138 and 141 – Magistrate has to apply his mind before summoning the accused – Must find out truthfulness or otherwise of the allegations – Summons can be issued only if any offence is found to have been prima facie committed by all or any of the accused. (Para 22,
(1998) 5 SCC 343; Cr. Appeal No. 2228 of 2014 – Relied upon
(d) Negotiable Instruments Act, 1881 – Section 138 r/w 141 – Respondent-complainant knowing fully well that appellant ceased to be a Director of the company from 17th December, 2005 and two new Directors were inducted from that date – Still arraying all Directors as accused – Respondent-complainant disputing genuineness of Form 32 to challenge resignation of appellant – At the same time relying on same document to array the two new Directors – Certified copy of the annual return of the company establishing resignation of appellant from 17.2.2005 – On the other hand Responent-complainant extending trade finance facility to the Company during the period from 13th April, 2008 to 14th October, 2008 – Complaint nowhere assigning specific role of appellant – Continuation of criminal proceedings against appellant under Section 138 read with Section 141 – Pure abuse of process of law. (Para 24, 25, 26, 27, 28)
(e) Negotiable Instruments Act, 1881 – Section 138 and 141 – Letter of guarantee – Gives rise to civil liability – Cannot be brought under purview of section 138 r/w 141 – Criminal law cannot be put into motion for settling scores of civil nature (Para 29, 30)
Facts of the case:
Respondent No. 2, a finance Company, filed seven complaints under the N.I. Act against the appellant and others.
In all the complaints the allegation was that the Respondent No. 2 Company had extended trade finance facility to M/S Elite International Pvt. Ltd. To which the appellant was a Director at the relevant time and several Cheques (119 in number) issued by M/S Elite International Pvt. Ltd. Aggregating to Rs.8,64,58,810-16, in discharge of its liability towards part payment, stood dishonoured with the banker’s remarks “insufficient funds”.
According to the complainant, at the material time, the accused (appellant) was in charge and at the helm of affairs of M/S Elite International Pvt. Ltd. And therefore she is vicariously liable for the default of the Company as she is responsible for the conduct of its business.
The appellant filed Criminal Writ Petitions before the High Court seeking quashing of the criminal proceedings pending before the Metropolitan Magistrate.
The High Court dismissed the writ petitions filed by the appellant.
Finding of the Court:
Continuation of criminal proceeding against the appellant is a pure abuse of the process of law.
Result: Appeal allowed.
JUDGMENT
N.V. RAMANA, J.
Leave granted.
2. These appeals by special leave are filed by the appellant challenging the impugned judgment and order dated 6th October, 2010 passed by the High Court of Judicature at Bombay in Writ Petition Nos. 614-620 of 2010 whereby the High Court dismissed the writ petitions filed by the appellant seeking quashing of the complaints filed by the Respondent No.2 under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “the N.I. Act”).
3. The brief facts of these appeals are that Respondent No. 2, a finance Company, filed seven complaints under the N.I. Act against the appellant and others viz., (1) Complaint No. 3370/SS/2008 claiming Rs.1,64,69,801-14 (2) Complaint No. 3641/SS/2008 claiming Rs.1,06,55,289-91 (3) Complaint No. 3368/SS/2008 claiming Rs. 1,41,95,806-40 (4) 3640/SS/2008 claiming Rs. 85,21,294/- (5) 3369/SS/2008 claiming Rs. 1,88,12,292/- (6) 3642/SS/2008 claiming Rs. 1,69,95,353-50 and (7) Complaint No. 4086/SS/2009 for a claim of Rs. 8,08,973-25. In all the complaints the allegation was that the Respondent No. 2 Company had extended trade finance facility to M/S Elite International Pvt. Ltd. to which the appellant was a Director at the relevant time and several Cheques (119 in number) issued by M/S Elite International Pvt. Ltd. aggregating to Rs.8,64,58,810-16, in discharge of its liability towards part payment, stood dishonoured with the banker’s remarks “insufficient funds”. According to the complainant, at the material time, the accused (appellant) was in charge and at the helm of affairs of M/S Elite International Pvt. Ltd. and therefore she is vicariously liable for the default of the Company as she is responsible for the conduct of its business. Metropolitan Magistrate, 12th Court, Bandra, Mumbai took cognizance of the complaints and issued process against the accused (appellant) for the offence punishable under Section 138 of the N.I. Act.
4. The aggrieved appellant filed Criminal Writ Petitions before the High Court under Section 482, Cr.P.C. seeking quashing of the criminal proceedings pending before the Metropolitan Magistrate. The High Court initially by an interim order dated 28th July, 2010 granted stay of the criminal proceedings qua the appellant and directed the trial to be proceeded against the other accused. Finally, by the impugned order, the High Court dismissed the writ petitions filed by the appellant. Challenging the said order of dismissal, the appellant has preferred these appeals before this Court.
5. The main contention advanced by the learned counsel for the appellant is that the appellant is merely a housewife who was appointed as a Non-Executive Director of M/s Elite International Private Ltd. and had no active role in the conduct of business of the Company, particularly in the issuance of the cheques in question. As a matter of fact, the appellant had resigned as the Director much before the issuance of the cheques in question, her resignation was also approved by the Board of Directors in the meeting held on 17th December, 2005. The resignation of the appellant as Director of M/S Elite International Pvt. Ltd. has also been informed to the Registrar of Companies by Form No. 20B under Section 159, Schedule V, Part II of the Companies Act, 1956 when the annual return for the year ending on 31st March, 2006 was filed. The trade facility was sanctioned by the Respondent No. 2 on 19th January, 2005 as per the Letter of Guarantee executed by the appellant on the same date. The effective date of resignation of the appellant as Director of the Company was 17th December, 2005. With the result of approval of her resignation by the Board of Directors, the appellant ceased to play any role in the activities of the Company. The Cheques in question were issued by the Company in the year 2008 i.e. about two and half years after resignation of the appellant as Director. This fact itself emphasizes that the appellant was not
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