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2012 Supreme(Del) 856
IN THE HIGH COURT OF DELHI AT NEW DELHI
SURESH KAIT, J.
RANJIT TIWARI - Petitioner
Versus
NARENDER NAYYAR - Respondent
CRL.M.C.No.4077/2011 & Crl.M.A.Nos.19016/2011 & 3720/2012
Decided On : 26th March, 2012
Advocate Appeared:
Mr. Himansu Upadhyay, Mr. J.P. Sahrawat and Mr. Shivam Tripathi, Advs.
Mr. Ankur Bansal, Adv.
Specific averments regarding the accused's role in the company's conduct of business are essential for liability under Section 141 NI Act.
Headnote:
NI Act - Summoning of Managing Director - Section 141 NI Act
Fact of the Case:
The petitioner challenges the order summoning the Managing Director of the company under Section 138 NI Act. The complainant alleged that cheques issued by the accused were returned, and legal notice was sent. The complainant later moved an application to summon the Managing Director.
Finding of the Court:
The court analyzed the provisions of Section 138 and 141 of the NI Act and the complainant's failure to specifically allege the accused's role in the company's affairs. The court found that the impugned order was contrary to the provisions of the Act.
Issues: The issues revolved around the complainant's failure to specify the accused's role in the company's affairs and the interpretation of Section 141 NI Act.
Ratio Decidendi: The court emphasized that for liability under Section 141, there must be specific averments in the complaint regarding the accused's role in the company's conduct of business. The court also relied on precedents to establish the legal position.
Final Decision: The petition was dismissed, and the court concurred with the order summoning the Managing Director.
SURESH KAIT, J. 1. The instant petition is being filed while challenging the order dated 21.09.2011 passed by learned Metropolitan Magistrate which reads as under:- “21.09.2011 CC No.987/1/10 Present: Complainant along with ld. Counsel. AR of accused along with ld. Counsel.
Counsel for complainant has filed an application for summoning of Sh. Ranjit Tiwari as co-accused in the present complaint on the ground that earlier he is not aware about the name of the Managing Director and hence, company was arrayed as accused. However, now he has come to know that Mr. Ranjit Tiwari is the Managing Director of the Company and requested for the summoning. Further today Vinod Yadav office assistanct/AR of company is present today and court has verified from him about the name of the Managing Director that Sh. Ranjit Tiwari is the Managing Director of the company. Section 141 NI Act is reproduced hereunder:-
“If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and proceeded against and punished accordingly” So it is clear from section 141 NI Act that any person who was Incharge and responsible of company for conduct the business is deemed to be guilty of the offence u/s 138 NI Act. Summons have already been served upon the company. Hence, it is settled law that no separate notice is required to be served upon the Director. I have perused the complaint. Prima facie case for commission of offence u/s 138 NI Act is made out against Managing Director Sh. Ranjit Tiwari. Application dated 05.09.2008 is disposed off. Let he be served on filing of PF and RC. Be listed for 01.12.2011.”
2. Ld. Counsel for the petitioner has submitted as alleged in the complaint that by virtue of partial discharge of legal and enforceable liability, the accused had issued and delivered cheques bearing No.522451 and 522428, both drawn on State Bank of Patiala, Parliament Street, New Delhi, in the name of the respondent/complainant. The said cheques, when presented by the complainant, were returned vide memo dated 12.11.2007. The information qua the same was communicated to the accused person on 13.12.2007 through a legal notice.
3. He further submitted that thereafter, the respondent filed a complaint before the Metropolitan Magistrate, Tis Hazari, Delhi, who without looking into the contents of the complaint, issued summons to M/s Mirik Health Food Pvt. Ltd. 4. Ld. Counsel has further submitted that the alleged M/s Mirik Health Food Pvt. Ltd. cannot be alleged to be the accused. Thereafter, the respondent/complainant moved an application to include the name of the Managing Director of the company wherein both the petitioners have been made party in the complaint due to their designation M/s Liverpool Retail India Pvt. Ltd. 5. He argued that the respondent, at the later stage, without even mentioning the provisions of law, filed an application to summon the Managing Director of the company, i.e., the petitioner despite making any specific allegation in the entire complaint in respect of their respective roles in the affairs of the company, as is required under section 141 of the Negotiable Instruments Act(hereinafter referred to as “the said Act”) which is reproduced as under:- “Section 141. Offences by companies:
(1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and proceeded against and punished accordingly]; Provided that nothing contained in this sub-section shall render any person liable to
