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DELHI HIGH COURT
Ms. Sunita Gupta, J.
Shyam Narayan Mishra & Ors. —Petitioners
versus
State & Anr. —Respondents
Crl. M.C. 1791/2013 & Crl.M.A.5559/2013 With Crl. M.C. 1983/2013 & Crl.M.A.7873/2013 and Crl. M. C. 1986/2013 & Crl.M.A.7885/2013
Decided on 10.12.2013
IMPORTANT POINT
It is necessary to specifically aver in a complaint under Section 141 that at the time the offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 and has to be made in a complaint.
Headnote:Negotiable Instruments Act, 1881—Sections 138, 141—Offence by Company—Complaint alleging dishonor of cheque against M/s Research India and seven others including petitioners—Petition u/s 482 CrPC. for quashing of Criminal Complaint—Held a bare perusal of complaint showed that allegations against the accused persons were very vague— No specific role had been assigned to them— The complaint itself showed that as per the case of complainant, it was accused No.4 who had gone to the complainant’s house and the complainant gave two cheques of Rs. 4 lakhs each to him which was got transferred in the account of respondent no.1—Thereafter cheque of Rs. 20 lakhs was also issued by respondent no.4 as arrayed in the complaint, which was dishonoured— Except for vague assertions that accused Nos.2 to 8, excluding accused No.4, actively participated in the day to day business of accused No.1 and that they were members of Board of Directors., no specific role had been assigned to them –Again, it was not disclosed as to how they were responsible for the day to day affairs of company—In the absence of specific allegations qua the petitioners, summoning order qua the petitioners held not sustainable in law as there was neither any specific allegation nor prima facie evidence on record to show that they were in charge and responsible for the conduct of the business and day to day affairs of M/s Research India— Complaint and the proceedings emanating therefrom qua petitioners quashed—Petitions allowed. (Paras 15 to 17)
Ms. Sunita Gupta, J.—Vide this common order, I shall dispose of three petitions, bearing Nos.1791/2013, 1983/2013 and 1986/2013 for quashing of Criminal Complaint No.40686/2011, titled as “Kamal Singh v. Research India & Ors.” u/s 138 of N.I Act, P.S. Dwarka Courts, Delhi.
2. A criminal complaint u/s 138 read with Section 142 of the Negotiable Instruments Act read with Section 120 IPC was filed by the respondent complainant against M/s Research India and seven others including the present petitioners, inter alia on the allegations that in the month of October, 2008, Uttam Kumar Tiwari introducing himself as Director of the firm, contacted the complainant for investment/loan of Rs. 8 lakhs for the ongoing projects of the company with assurance to return the same with secured profits/interest and the total amount agreed by the accused persons were Rs.20,00,000. On persistent request from all accused, complainant agreed for the secured investment/loan of Rs. 8 lakhs and gave two cheques of Rs. 4 lakhs each to accused no.4 i.e. Uttam Tiwari and the accused got the amount transferred in his account. On persistent request of the complainant, accused issued a cheque bearing No.840001 for Rs. 20 lakhs dated 23.10.2010, which on presentation was dishonoured with the remarks “Payment stopped by drawer”.
3. It was alleged that accused nos. 2 to 8 are active participants in theday to day business of accused No.1 and they are under a liability to disburse the legally enforceable debt arising out the loan taken by accused No.1. Accused Nos. 2 to 8 are the members of the Board of Director/Executive. Legal notice was served upon all the accused persons calling upon them to pay the cheque amount. On their failure to pay the same, the complaint in question was filed.
4. After pre-summoning, evidence was led by the complainant, all theaccused were ordered to be summoned. Application was moved by the petitioners for stopping the proceedings qua them which was dismissed on the ground that in view of Adalat Prasad v. Roop Lal Jindal & Ors.1, that an aggrieved person cannot invoke the provisions of Section 207 of Cr.P.C. The remedy lies in invoking Section 482 Cr.P.C before the High Court. The revision preferred against that order was dismissed in view of the aforesaid Supreme Court judgment. Thereafter these petitions have been filed u/s 482 Cr.P.C for quashing of the Criminal Complaint, inter alia, on the allegations that respondent No.1 has been shown as NGO/ M/s Research India and respondent No.4 Uttam Kumar Tiwari is the sole Director of the NGO. In 2008, the petitioners were not the office bearers of accused No.1 nor had joined the NGO in any capacity. They joined the NGO in 2010 only. Uttam Kumar Tiwari is the sole Director of the NGO and is authorized signatory and accordingly, he has signed a cheque in question on behalf of the NGO and he is ready and willing to discharge his liability of the cheque amount, if legally recoverable from him or the said NGO by the complainant. In the affidavit also, the complainant has mentioned that when the loan was given to Uttam Kumar Tiwari by Sh. Kamal Singh, the petitioners were not present. There was no deal between Kamal Singh and the petitioners. They have been wrongly impleaded as accused in the complaint by the complainant. As per the byelaws of Research India, i.e. Memorandum of Association, Managing Committee Rules and Regulations of the NGO for the year 2010-2011, it is clear that petitioners were not the office bearers in any capacity in 2008, as such no liability can be fastened on them.
5. Notice of the petitions was served upon the respondent. I have heard Sh. R.S. Mishra, Advocate for the petitioner and Mr. R.K. Thakur, Advocate for respondent no.2 and have perused the record.
6. It is submitted by learned counsel for the petitioners that petitioners were inducted in the NGO i.e. respondent no.1 in the year 2010 whereas the transaction took place in the year 2008, as such, they cannot be
