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ALLAHABAD HIGH COURT
Sudhir Agarwal, J.
Smt. B. Devi (Basanti Devi) —Petitioner
versus
State of U.P. and Ors. —Respondents
Criminal Misc. Writ Petition No.2770 of 2003
Decided on 27.11.2015
Counsel for the Parties:
For the Petitioner:Surendra Tiwari, Advocate
For the Respondents:Govt. Advocate, Diwakar Pandey
IMPORTANT POINT
Fact whether any of accused-Director was not holding office at the time of commission of offence or had already resigned is a matter to be examined when defence in this regard comes before Court and evidence adduced.
Headnote:(A) Negotiable Instruments Act, 1881—Sections 138 and 141 read with Section 420 IPC—Constitution of India—Article 226—Dishonour of cheque—Offence by company—At the stage of summoning, defence of accused which they may adduce subsequently, cannot be seen since there was no occasion to look into such probable defence which may come when accused would appear and place their case before Magistrate—At the stage of issuing summons, Court has to see whether a prima facie commission of offence has been shown and appropriate material has come justifying summoning of accused persons against whom complaint has been made. (Para 12)
(B) Negotiable Instruments Act, 1881—Sections 138 and 141 read with Section 420 IPC—Constitution of India—Article 226—Dishonour of cheque—Offence by company—Complaint must show in substance pre-requisites of statute—It must show in substance requirement of statute and disclose necessary averments that would be sufficient to proceed against a Director—Clear and specific averments have been made in respect of petitioner also that she alongwith other Directors was responsible for conducting business of Company and participating regularly in all business and functions of Company—At the stage of issue summons after registering complaint and recording statement under Section 200 Cr.P.C., requirement of statute for the purpose of issue of summons against all Directors stood satisfied—Further fact whether any of accused-Director was not holding office at the time of commission of offence or had already resigned is a matter to be examined when defence in this regard comes before Court and evidence adduced—It is not a case where factum that petitioner resigned from office of Director of Company is admitted by complainant—Pleadings in complaint and allegations contained therein clearly attracts criminal liability of petitioner as one of Director of Company justifying summons issued by Magistrate—Writ petition dismissed. (Paras 30 to 36)
Result: Writ Petition dismissed.
Sudhir Agarwal, J.—Heard learned counsel for the petitioner and perused the record.
2. M/s Agrarians Agro Fields Limited is a Company registered under the provisions of Companies Act, 1956, having its registered office at C-2/67 New Kondli Delhi. One of the functions in which Company was engaged is property and financial transactions. Petitioner is one of the Director of Company. Other two Directors are Sri K. Rawat and Sri Devi Singh Negi. Sri Trilok Chand Sharma is the Chairman/ Managing Director of the Company.
3. It is alleged that petitioner resigned from Directorship on 28.02.1998 and information sent to Registrar, Companies, Delhi and Haryana.
4. Respondent 4, Sri Ratan Prakash Tyagi filed criminal complaint under Section 138 of Negotiable Instruments Act 1938 (hereinafter referred to as the “Act, 1938”) read with Section 420 IPC alleging that Company and its Directors including petitioner have committed fraud to usurp money of innocent people including respondent 4.
5. The company floated a scheme representing that amount invested shall be doubled within a period of three and half years and in order to assure benefit and also in lieu of deposits made by investors, lumpsum investment certificates and cheque of matured amount in advance were issued. Respondent 4 invested Rs.10,000/- through cheque dated 31.08.1997 and a further amount of Rs.10,000/- vide cheque dated 10.09.1997. The Company issued two certificates of lump sum investment amount and two post dated cheques of Rs.20,000/- each. Cheques were signed by Sri Trilok Chand Sharma and Sri Devi Singh Negi, the Managing Director and Director of Company. The cheques were issued in presence of petitioner and other Director, Sri K. Rawat. After expiry of period of three and half years and on maturity, respondent 4 submitted cheques for collection to Central Bank of India, Sihani, Ghaziabad but later on he was informed that cheques were dishonoured on the ground of in-sufficient funds in the account of Company.
6. The statement of complainant-respondent 4 under Section 200 Cr.P.C. was recorded and thereafter Special Judicial Magistrate, C.B.I. Ghaziabad issued process and passed an order dated 18.03.2002 summoning petitioner and other co-accused persons under Section 138 of Act, 1938.
7. Petitioner preferred a Criminal Revision No.179 of 2003 challenging order dated 18.03.2002, whereby she was summoned besides other accused. The revision was dismissed by Sri R.P. Yadav, Sessions Judge, Ghaziabad vide order dated 17.04.2003, hence this petition.
8. It is contended that petitioner has already resigned from the office of Director of Company and, therefore, cannot be incharge of affairs of Company in terms of Section 141 of Act 1938. The order summoning petitioner, therefore, is illegal. Further, petitioner had not issued cheques under her signature and, therefore, for dishonouring of cheques, petitioner cannot be held responsible and no criminal proceedings can be initiated against her. Learned counsel for petitioner in support of his submissions placed reliance on National Small Industries Corp. Ltd. Vs. Harmeet Singh Paintal and others, 2010(69) ACC 334, Monaben Ketanbhai Shah and another Vs. State of Gujarat and others, JT 2004(6) SC 309, Aparna A. Shah Vs. Sheth Devel Opers Private Ltd. and another, 2013(8) SCC 71 and A.K. Singhania Vs. Gujarat State Fertilizer Company Ltd. and another, 2014(84) ACC 1.
9. The respondent 4, having put in appearance, has filed a counter affidavit stating that Company is a bundle of fraud and involved in cheating of public including petitioner’s. Accused have consistently changed their address, repeatedly, and presently i.e. at the time of filing of counter affidavit, office of Company is not at the address given in para 2 of writ petition. On the date cheques were issued and respondent 4 was represented so as to persuade him to invest in the Company, petitioner was a Director. Her alleged resignation and document i.e. Annexure 1,
