Back
2021 Supreme(Del) 740
IN THE HIGH COURT OF DELHI AT NEW DELHI
MANOJ KUMAR OHRI, J.
In the Matter of: R. Vijay Kumar – Petitioner
Versus
M/s IFCI Factors Limited and Others – Respondents
Crl. M.C. Nos. 2358, 2362 of 2021, Crl. M.A. Nos. 15628, 15635-15636 of 2021
Decided On : 20-12-2021
Advocate Appeared:
For the Petitioners: Dr. Amit George, Mr. Saurabh Bhargavan, Mr. Rayadurgam Bharat, Ms. Shweta Sharma.
Point of Law: Law regarding the issue as to whether cheques in question were given as security in a case under Section 138 N.I. Act is well-settled to the effect that the same shall be a matter of trial.
Headnote:
Negotiable Instruments Act, 1881 - Sections 138/141- Criminal Procedure Code, 1973 - Seeking quashing of Complaint - Application seeking discharge/dropping of the proceedings.
Finding of the Court:
N.I. Act being a penal statute should receive strict construction. Thus, specific averments in a criminal complaint which satisfy the requirements of Section 141 N.I. Act are imperative. On a prima-facie view of the material placed on record in the present case, it is apparent that specific allegations have been levelled against the petitioner. Apart from the basic averment that the petitioner was in-charge of and responsible for the day-to-day business of the accused company, it was further averred in the complaint that the petitioner, being a Director, was in charge of the financial decision-making of the accused company and he had agreed to guarantee repayment of all amounts payable by the accused company to the complainant in terms of the Factoring Agreement.
Result: Petitions are dismissed.
JUDGMENT :
MANOJ KUMAR OHRI, J.
1. The present petitions have been filed under Section 482 Cr.P.C. on behalf of the petitioner seeking quashing of Complaint Case Nos. 627314/2016 and 618548/2016 arising out of the proceedings initiated under Sections 138/141 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the N.I. Act). Additionally, the petitioner has prayed for quashing of the order dated 07.04.2021 passed by the learned Metropolitan Magistrate (N.I. Act), South-East District, Saket Courts, New Delhi, whereby his application seeking discharge/dropping of the proceedings qua him has been dismissed.
2. Briefly stated, the facts of the instant case are that respondent No. 1/complainant filed the aforesaid complaints under Sections 138/141 N.I. Act claiming that the cheques in question were issued in its favour by the accused company, i.e. Daily Life Retail and Trading Pvt. Ltd. and the same, on presentation, were dishonoured and returned with the remarks account closed. As a result, a legal notice dated 30.07.2010 was issued and on failure of the accused persons to clear the outstanding payment in terms of the cheques in question, the aforesaid complaints came to be filed.
3. Learned counsel for the petitioner has sought quashing of the complaint cases on the ground that only bald and vague allegations have been made against the present petitioner, who was a dormant Director out of the many Directors of the accused company. He submits that the petitioner was not responsible for the running of day-to-day affairs of the company. It is further stated that the petitioner was neither a signatory to the Agreement dated 15.07.2008 executed between the complainant company and the accused company, nor did he sign the cheques in question. It is also submitted that the complaints are bereft of necessary ingredients required under Section 138 N.I. Act. In support of his submissions, learned counsel has placed reliance on the following decisions:
(i) Meenu Goyal vs. Micromax Informatics Ltd. 2020 SCC Online Del. 1939
(ii) Sunita Palta and Others vs. M/s Kit Marketing Pvt. Ltd. (2020) 267 DLT 723
(iii) Dharna Goyal vs. Aryan Infratech Pvt. Ltd. MANU/DE/1994/2020
(iv) Har Sarup Bhasin vs. Origo Commodities India Pvt. Ltd. 2020 SCC Online Del. 9
4. Learned counsel for the petitioner has further invited attention to the order dated 10.10.2019 passed by this Court in Crl. M.C. No. 5107/2019, whereby the order dated 03.09.2019 passed by the learned Metropolitan Magistrate framing notice under Section 251 Cr.P.C. was set aside and it was directed that a fresh reasoned order be passed within a period of eight weeks. He also invited attention to the particulars mentioned in Form-32 along with ROC records to submit that there are other Directors of the accused company who have not been arrayed in the complaints.
5. I have heard the learned counsel for the petitioner and gone through the material placed on record as well as the decisions cited in support of his submissions.
6. A perusal of the aforesaid complaints would show that the complainant alleged that the present petitioner, who has been arrayed as accused No. 2, had agreed to guarantee repayment of all payments payable by the accused company in terms of the Factoring Agreement. It was also alleged that the present petitioner along with other accused persons was in-charge and responsible for making financial decisions of the accused company.
7. One of the contentions raised on behalf of the petitioner is that he was not served with any demand notice separately. However, the same does not weigh with this Court in view of the decision in Kirshna Texport and Capital Markets Limited vs. Ila A. Agrawal, (2015) 8 SCC 28, where the Supreme Court held as under:
“18. In our view, Section 138 of the Act does not admit of any necessity or scope for reading into it the requirement that the directors of the Company in question must also be issued individual notices under Section 138 of the Act. Such
