Independent Directors are liable under the N.I. Act only if proven to be in charge of a company's affairs at the offense time.

JUDGMENT :

NEENA BANSAL KRISHNA, J.

1. Petition under Section 482 of Criminal Procedure Code, 1973 (Cr.P.C) has been filed for quashing of the Summoning Order dated 09.07.2015 and proceedings emanating from CC No. 212/01/2015 for Offences under Section 138 /141 of Negotiable Instruments Act , 1881 (N.I. Act).

2. Briefly stated, Complainant/Respondent No. 1/Shri Duni Chand Garg, proprietor of M/s Sarthak India was engaged in the business of trading Plastic Danna and plastic granules. Office bearers of Respondent No. 2/ M/s Lumax Automotive Systems Pvt. Ltd. placed 3 Purchase Orders No. P02 AO No.-0018 dated 16.07.2014, PO-0196 dated 19.09.2014 and P0196 AO No- AO-0048 dated 02.01.2015 to the Respondent No. l/Shri Duni Chand Garg.

3. The Complainant supplied material to the accused persons through various Bills issued between 12.09.2014 – 03.04.2015, and the Respondent No. 2 / M/s Lumax which owed Rs.2,01,16,368/- to the Complainant as on 07.04.2015, issued three Cheques bearing No. 379121, dated 30.01.2015 for Rs.25,00,000/-, No. 533250, dated 27.02.2015 for Rs.25,65,951/- and No. 533361, dated 28.04.2015 for Rs.25,00,000/-. Cheque No. 379121 was presented and the same got dishonoured on account of “payment stopped by drawer” and was returned with Return Memo dated 28.04.2015.

4. The Complainant informed the accused persons about the dishonour of the Cheque and requested to clear the outstanding amount, but the same was refused. The Complainant sent Legal Notice dated 22.05.2015 which was duly served on all the accused persons.

5. Thereafter, the Complaint was filed by the Complainant under S.138 NI Act and the Petitioner was summoned along with other accused persons, vide Order dated 09.07.2015.

6. The Petitioner has sought quashing of the summoning Order on the ground that the Ld. M.M has taken Cognizance mechanically and summoned the Petitioner without ascertaining her role in the commission of the Offence under Section 138 /142 N.I. Act.

7. The Ld. M.M has failed to take note of Form DIR-12 filed by the Complainant in which she has been mentioned as an Independent Director appointed on 13.02.2015, and that the Cheque was issued for Orders placed between 16.07.2014 – 02.01.2015, i.e. prior to her appointment as Independent Director

8. It is submitted that the Ld. M.M has erred in summoning the Petitioner/Accused especially when no document has been produced by the Complainant to show that the Petitioner was responsible for day-to-day affairs of the Company; merely bald averments to this effect are not tenable.

9. Reliance has been placed on Central Bank of India vs. Asian Global Ltd. , (2010) 11 SCC 203, Small Industries Corporation Limited vs. Harmeet Singh Paintal , 2010 3 SCC 330, and Punjab National Bank vs. Surendra Prasad Sinha , 1993 Supp. (1) SCC 499 .

10. Thus, it is prayed that the Summoning Order passed qua the Petitioned be set aside.

11. All the Respondents were duly served as recorded in Order dated 08.04.2021. Respondent No. 1 has chosen to not file any Reply as recorded in Order dated 09.01.2023. Opportunity was granted to the Respondents; however, no arguments were advanced on their behalf.

Submissions Heard and Record Perused.

12. The impugned Cheque bearing No. 379121 dated 30.01.2015 for Rs.25,00,000/- is claimed to have been issued by the Respondent No. 2/M/s Lumax in discharge of its legal liability. The impugned Cheque has been signed by Respondent No. 5/Milan Jain, on behalf of Respondent No. 2.

13. The Petitioner has sought to discharge on the ground that she is an independent woman Director in the Accused Company, and consequently, had no control over the day-to-day affairs of the Company.

14. Section 141 of N.I. Act read with Explanation, makes it abundantly clear that when an offence is committed by a Company or a Firm, every member who is responsible and in ch