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2008 (2) Bankmann 153 (Del.)
DELHI HIGH COURT
Pradeep Nandrajog, J.
Harmeet Sigh Paintal —Petitioner
versus
State (NCT of Delhi) and Ors. —Respondents
Criminal M.C. No. 1853 of 2005, 1854 of 2005 etc.
Decided on 24.10.2007
For the Petitioner:Mr. K.K. Manan, Advocate with Mr. Rishikesh Choudhary and Mr. Asit Tewari, Advocates.
For the Respondents:Mr. Sanat Kumar and Mr. M.P. Singh, Advocates.
IMPORTANT POINT
To prosecute a Director of Company for offence of dishonour of cheque committed by Company, mere averment that Director was in-charge of and responsible for conduct of business of Company with other accused is not sufficient.
Headnote:Negotiable Instruments Act, 1881—Section 138 and 141—Dishonour of cheque issued by company—Prosecution of company, its Managing Director and Director—Petition by Director to quash proceedings against him—Only averment against petitioner was that he along with accused Managing Director was in-charge of and responsible of conduct of business of Company—Whether averment was sufficient to make petitioner liable for offence committed by Company? No. (Paras 6 to 13)
Result: Petition allowed.
Pradeep Nandrajog, J. —All petitions can be disposed by a common order for the reason learned counsel for the parties agree that save and except the cheque number, date of cheque and the amount, each and every averment in the complaints which are sought to be quashed in the instant petitions are identical.
2. Since matter was argued with reference to Cri.M.C.No. 2953/05, complaint forming subject matter of the said petition may be noted.
3. But before that it may be recorded that all the complaints are under Section 138 read with Section 141 of N.I. Act. The complainant is National Small Industries Corporation Ltd. Accused No.1 is M/s Jay Rapid Rollers Ltd. It is a company registered under the Companies Act. Accused No. 2, Sukhbir Singh is stated to be the Managing Director of accused No.1. Accused No. 3 is the petitioner, stated to be the Director of accused No.1.
4. The complaint is short and cryptic. It may be reproduced verbatim.
“1. That the complainant firm is a Govt. of India Enterprises having its office at NSIC Bhawan, Okhla Industrial Estate, New Delhi and Sh. Satender Kumar, Development Officer (Law) has been authorized to file the complaint vide power of attorney dated 3.9.2002.
2. That the accused persons approached the complainant for financing of bill integrated market support program. The complainant extended the bill financing facility to the accused.
3. That the accused issued cheques and same were dishonoured and the complainant company filed cases against the accused persons and they were summoned under Section 138 N.I. Act by the Hon’ble Court.
4. That during the proceedings a settlement was arrived at. The accused persons accepted the liability of Rs.75,68,920 and against that liability accused persons issued cheque No. 809235 dated 15.4.2003 for Rs. 2,00,000 as part payment, drawn on State Bank of India, Pusa Road, Shopping Complex, Rajendra Place, New Delhi. Copy of letter dated 3.6.2000 issued by accused persons enclosed herewith.
5. That the abovesaid cheque was presented by the complainant to their banker Punjab National Bank, Okhla Industrial Estate, New Delhi but the same was returned unpaid with the remarks “Insufficient Funds” vide memo dated 19.4.2003 of the bank of accused.
6. That the complainant issued notice dated 24.4.2003 dispatched on 24.4.2003 under Registered A.D. and under UPC cover. The Registered and UPC envelopes addressed to the accused No. 2 and 3 has been received back with the remarks ‘refused’ and the other were duly served upon the accused by UPC as well as by Registry, but the payment has not been received by the complainant company within 15 days. The returned registry envelope (2 Nos.) are enclosed herewith.
7. That the accused No.1 is a company duly registered under the Companies Act.
8. That the accused No.1 is the Managing Director and accused No. 3 is the Director of the accused company. The accused No.2 and 3 are the in-charge and responsible for the conduct of the business of the company accused No.1 and hence are liable for the offences.
9. That the complainant office is situated in Delhi, the payment was received at Delhi and the cheques were presented to banker in Delhi, hence this Hon’ble Court has got jurisdiction to decide the matter.
10. That the complaint is within limitation of one month prescribed under the N.I. Act.
11. That the accused have rented themselves liable to be prosecuted under the N.I. Act.
12. That the complainant is a Govt. of India undertaking and the complainant be exempted from pre-summoning evidence.
It is therefore, most respectfully and in the interest of justice prayed that the accused persons be summoned and punished under Section 138/141/142 N.I. Act.
It is further prayed that the amount realized as fine be paid to the complainant.”
5. It is conceded by learned counsel for NSIC, the complainant that though in para 4 of the compliant it is stated that the accused persons issued the cheque in ques
