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2009(2) Bankmann 185 (Del.)
DELHI HIGH COURT
Kailash Gambhir, J.
Manish Kant Aggarwal —Petitioner
versus
National Agricultural Co-operative Marketing Federation of India
Ltd. and Anr. —Respondents
Criminal M.C. No.1637 of 2007; Criminal M.C. No.1597 of 2007 and Criminal Misc. (c) No.2667 of 2007
Decided on 20.12.2008
For the Petitioner:Mr. Sidharth Luthra, Sr. Advocate with Mr. Amit Mahajan and Mr. Neeraj Walia, Advocates.
For the Respondents:Mr. Saran Suri, Mr. Gunjan Kumar, Mr. Ranjan Kumar, Advocates.
IMPORTANT POINT
Necessary averments ought to be contained in a complaint before a person can be subjected to criminal process.
Headnote:(i) Negotiable Instruments Act, 1881—Section 138—Cheques dishonoured—Section 142/141—Three separate complaints filed, involving Directors—Cognizance of offences taken.
(ii) Criminal Procedure Code, 1973—Section 482—Petitions for quashing of summoning orders—Held: Company did not issue any cheque—Ex-director(s) drew and signed the cheque from his own personal account—He resigned before the cheques had been issued—Neither company nor co-director could be held liable—Petitions are allowed—Impugned summoning orders are quashed—(Paras 1, 3 to 5, 28 and 29)—Resignation—Operation—Resignation is effective from the date on which it was tendered. (Para 26)
Kailash Gambhir, J.—This order shall dispose of three separate petitions filed by the petitioners assailing the summoning order passed by the Court of Sh. Chander Shekhar, Metropolitan Magistrate in three separate complaint cases.
2. Common ground for challenging the summoning order in all the three petitions is that in all the three complaint cases filed by respondent No. 2, the petitioners are neither the drawer nor the signatories of the dishonoured cheques based on which the complaint under Section 138 r/w Sections 141 and 142, N.I. Act was filed by respondent No.2. In Criminal Miscellaneous No.2667/2007 the petitioner does not dispute that he was director of M/s. M.K. International Ltd. on the relevant date of the commission of the offence and he had also written a letter dated 9.9.2005 on behalf of the said company whereby 36 cheques were sent to the respondent No.2 as security which ultimately got dishonoured due to the non-availability of sufficient balance amount in the concerned bank account of the drawer of these cheques. While in two other cases i.e. Cri M. No.1637/07 and Cri. M. No.1597/2007 the petitioners have claimed that they were not the directors on the relevant date of the commission of the crime as by that time they had already resigned from the Directorship of the said company. In support of this plea the petitioners have also filed Form 32 which shows that they had resigned from the directorship of the company on 25.10.2005. All other legal grounds are common in all the three petitions.
Cri M. No.2667 /2007
3. The facts of the case which are not in dispute are that the 36 cheques were issued for a total amount of Rs. 56,44,18,075 by Sh. Ram Chander Sharma one of the Directors of M/s. M.K. International Ltd. from his own personal account and all these cheques were dishonoured vide bank memo of the drawer bank dated 2.1.2007. The legal notice of demand in fulfilment of the requirement of Section 138, N.I. Act was sent by respondent No.2 against the company as well as all the directors of the company including the petitioner and on the failure of the drawer of the cheques and other co-directors to pay the amount, the respondent No.2 had filed the said complaint under Section 138 r/w Sections 141 and 142, N.I. Act.
Cri. M. No. 1637/2007
4. Similarly, 36 cheques for an amount of Rs. 56,44,18,075 were drawn and signed by Sh. Ram Chander Sharma, Director of M/s. M.K. International and the complaint was filed by respondent No.2 impleading the company as well as its directors after the failure of the drawer of the cheques and other co-notices to pay the amount of dishonoured cheques despite service of legal notice.
Cri M. No.1597/2007
5. The dishonoured cheques were drawn and signed by Mr. Avdesh Singh, one of the Directors of M/s. M.K. International Limited for an amount of Rs. 1,12,65,321 and the complaint was filed by respondent No.2 impleading the said company as well as its directors on the failure of the drawer of the cheque and the co-notices to pay the amount of the dishonoured cheques despite notice of demand sent by the company.
6. The common question of law raised by the petitioners is that no other person except a drawer of the cheque from whose account the dishonoured cheques were issued can be made liable to face criminal prosecution under Section 138, N.I. Act as envisaged under Section 141 of the Act. The other contention raised in these petitions that vicarious liability of the Director or any other officer of the company can be fastened only in a case where the drawer of the cheque is company itself and necessary averments are made in the complaint clearly disclosing that impleaded accused persons were in-charge and responsible for the affairs and conduct of the business at the relevant time of commission of offence. Mr. Vijay Aggarwal counsel appearing for the petitioner in Cri M. No. 2667/2007 strongly contended that plain reading of Section 138 of the N.I. Act would show that the co
