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2023 Supreme(Del) 5133

IN THE HIGH COURT OF DELHI AT NEW DELHI
Anup Jairam Bhambhani, J.
Sashi Kumar Nagaraji & Ors. – Appellants
Versus
M/s Magnifico Minerals Pvt. Ltd. & Ors. – Respondents
Cr.M.C. 2480 of 2017 & Cr.M.A.10318 of 2017, Cr.M.C. 2481 of 2017 & Cr.M.A. 10320 of 2017, Cr.M.C. 2487 of 2017 & Cr.M.A. 10347 of 2017, Cr.M.C. 2489 of 2017 & Cr.M.A. 10356 of 2017, Cr.M.A. 10357 of 2017, Cr.M.C. 2490 of 2017 & Cr.M.A. 10358 of 2017, Cr.M.C. 2491 of 2017 & Cr.M.A. 10360 of 2017 & Cr.M.C. 2492 of 2017 & Cr.M.A. 10362 of 2017
Decided On : 28-06-2023

Advocates appeared:
Mr. Mukul Gupta, Senior Advocate with Mr. Achin Mittal, Mr. Sumit and Mr. Saurav Tomar, Advocates, for the Petitioners.
Mr. Ayush Jindal with Mr. Pankush Goyal and Mr. Anuj Kapoor, Advocates, for R1.

Headnote:

CRIMINAL - Negotiable Instruments Act, 1881 - Section 138 - Dishonour of cheque for insufficiency, etc., of funds in the account - Complaint - Summoning order - Quashing of - Petitioners, directors of respondent company, were summoned by the Magistrate in complaints filed under Section 138 of the Negotiable Instruments Act, 1881 for dishonour of cheques issued by the respondent company - Petitioners challenged the summoning orders contending that they were not in-charge of and were not responsible for the conduct of the business of the company at the relevant time - HELD, dismissing the petitions, that the summoning orders were not sustainable in law and were liable to be quashed since there were no allegations in the criminal complaints in relation to the petitioners, much less any specific allegations as to their role in the alleged offence.

Fact of the Case:

Petitioners, directors of respondent company, were summoned by the Magistrate in complaints filed under Section 138 of the Negotiable Instruments Act, 1881 for dishonour of cheques issued by the respondent company. Petitioners challenged the summoning orders contending that they were not in-charge of and were not responsible for the conduct of the business of the company at the relevant time.

Finding of the Court:

The summoning orders were not sustainable in law and were liable to be quashed since there were no allegations in the criminal complaints in relation to the petitioners, much less any specific allegations as to their role in the alleged offence.

Issues: Whether the summoning orders issued by the Magistrate against the petitioners, directors of the respondent company, in complaints filed under Section 138 of the Negotiable Instruments Act, 1881 for dishonour of cheques issued by the respondent company, were sustainable in law.

Ratio Decidendi: 1. For summons to be sustained and for trial to continue, it is absolutely essential that the basic or foundational averments must be contained in a criminal complaint against a director in relation to his alleged role in the offence. 2. The summoning orders were not sustainable in law and were liable to be quashed since there were no allegations in the criminal complaints in relation to the petitioners, much less any specific allegations as to their role in the alleged offence.

Final Decision: Petitions dismissed.

JUDGMENT

Anup Jairam Bhambhani, J.

1. By way of the present petitions filed under section 482 of the Code of Criminal Procedure, 1973 (`Cr.P.C.') the petitioners seek quashing of summoning orders dated 08.03.2017 passed by the learned Metropolitan Magistrate, District Courts, Saket, Delhi in CC Nos. 2999/2017 (New CC No. 7355/2017), 3000/2017 (New CC No. 7359/2017), 2996/2017 (New CC No. 7357/2017), 2997/2017 (New CC No. 7358/2017), 3002/2017 (New CC No. 7356/2017), 2998/2017 (New CC No. 7361/2017), 3001/2017 (New CC No. 7360/2017) and the respective complaints seeking prosecution of the petitioners under section 138 Negotiable Instruments Act, 1881 (`NI Act.).

Brief Facts

2. A brief conspectus of facts leading-up to the filing of the present petition is as follows:

2.1 Petitioner No. 1 (Sashi Kumar Nagaraji), petitioner No. 2 (Sanjay Kumar Nagaraji) and petitioner No. 3 (Swaminathan Nagaraji) are directors of respondent No. 2 company (M/s. Saravana Alloys Steels Pvt Ltd). Respondent No. 1 company/complainant (M/s Magnifico Minerals Pvt Ltd) is engaged in the business of resale of imported steam coal. Respondent No. 3/Nagaraji Saravana is the signatory of the cheques that are subject matter of the present petition and has therefore been impleaded as a pro-forma respondent in the present petitions.

2.2 The allegation in the criminal complaints is that the respondent No. 2 company had placed an oral order for purchase of coal at the registered office of the complainant in Delhi, pursuant to which the goods ordered were supplied between 19.10.2012 and 06.09.2013; consequent whereupon an amount of Rs.3,74,25,537/- became due and recoverable by respondent No. 1 from respondent No. 2.

2.3 Toward payment for the above-mentioned transaction, respondent No. 2 issued to respondent No. 1 the following 07 cheques, which were however dishonoured and returned with different remarks, as summarised in the table below:

S. No.CRL.M.C. No.Cheque No. & DateDate of Dishonour of ChequeReason for dishonourDate of Statutory Notice
1.2480/20171518 04.04.201420.06.2014Other Reasons12.07.2014
2.2481/20171516 31.03.201414.06.2014Other Reasons11.07.2014
3.2487/20171514 27.03.201421.05.2014Funds Insufficient11.06.2014
4.2489/20171519 07.04.201419.06.2014Other Reasons12.07.2014
5.2490/20171513 25.03.201417.05.2014Funds Insufficient11.06.2014
6.2491/20171515 29.03.201413.06.2014Exceeds Arrangement12.07.2014
7.2492/20171517 02.04.201418.06.2014Other Reasons12.07.2014

2.4 Each of the cheques issued were for an amount of Rs.50,00,000/- and all cheques were drawn on City Union Bank Ltd., Sultanpet Circle, Bangalore and were dishonoured at Canara Bank, Okhla Industrial Estate, New Delhi.

2.5 Multiple statutory notices were issued in relation to the dishonoured cheques on different dates as aforementioned, demanding the payment of the amounts due. However, it is the petitioners' case that, contrary to what is claimed by respondent No. 1 company, no statutory notice was received by the petitioners.

2.6 Upon not receiving the cheque amounts, 07 complaints were filed alleging the offence under section 138 of the NI Act in Bangalore and Delhi. 02 complaints were filed on 23.07.2014 in the court of the learned Chief Metropolitan Magistrate, Saket, Delhi (`CMM, Delhi.) that are subject matter of challenge in CRL.M.C. Nos. 2487/2017 and 2490/2017 and 05 other complaints were filed on 27.08.2014 in the court of the learned Additional Chief Metropolitan Magistrate, Bangalore (`ACMM, Bangalore.) that are subject matter of challenge in CRL.M.C. Nos. 2480/2017, 2481/2017, 2489/2017, 2491/2017 and 2492/2017.

2.7 In the 05 complaints filed in Bangalore, the learned ACMM, Bangalore was satisfied that the complainant had made-out a prima-facie case against the accused persons, and therefore, vide order dated 10.09.2014, the learned ACMM, Bangalore proceeded to issue summons to all the accused persons in those complaints.

2.8 As for the 02 complaints initiated in Delhi, the learned CMM, S

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