Directors' liability under the Negotiable Instruments Act does not require specific averments if they signed the cheques on behalf of the company.

JUDGMENT

Jasgurpreet Singh Puri, J. (Oral) - The present petition has been filed under Section 482 of the Code of Criminal Procedure for quashing of the Complaint bearing No.720 of 2016, dated 28.03.2016, under Sections 138/142 of the Negotiable Instruments Act titled as 'M/s Harshil Trading Co. Vs. Richi Rich Agro Foods (P) Ltd. and others' (Annexure P-4) and also quashing of the order dated 28.03.2016 (Annexure P-5), whereby the summoning orders have been issued to the petitioners.

2. Learned counsel for the petitioners has submitted that the present complaint was filed by the respondent-M/s Harshil Trading Co. under Section 138 read with 142 of the Negotiable Instruments Act against one Richi Rich Agro Foods (P) Ltd. and the present two petitioners and has further submitted that the said complaint was not maintainable and the consequent summoning order issued to the petitioners was also not maintainable in view of the fact that there is no specific averment made in the complaint that they were managing the affairs of the company. He also submitted that there is no valid reason assigned while the passing the order of summoning against the present petitioners for facing the trial and there is no logical ground to summon the petitioners. He further submitted that mere issuance of a cheque is not an offence but it becomes punishable when the said cheque is dishonoured. He also submitted that in the present case petitioner No.3-Company had been sealed by the authorities on 07.04.2017 and the same was put in auction as is evident from the letter dated 12.05.2017 and 04.10.2018 respectively, and therefore, the petitioners were not liable to be proceeded under the provisions of Negotiable Instruments Act. He further submitted that moreover petitioner No.1 was not signatory of any cheque whereas only petitioner No.2 had only signed the cheque for and on behalf of the Company and a perusal of the cheque would reveal that it was issued by the company and not by petitioner No.2 in his individual capacity.

3. Learned counsel for the petitioner has also relied upon the judgment of the Hon'ble Supreme Court passed in 'S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla and another', 2005(4) R.C.R. (Criminal) 141, to contend that it is necessary to specifically aver in the complaint that the Directors were Incharge of, or responsible for conduct of business of the Company and this averment was essential requirement of Section 141 of the Negotiable Instruments Act.

4. On the other hand, Mr. Arun Bansal, learned counsel for the respondent has submitted that the present petition is liable to be dismissed on the ground that the complaint is at the fag end of the trial and refer to an order passed by the learned trial Court dated 12.07.2022 wherein the case was adjourned to 26.07.2022 for defence evidence and it was directed that if on the next date, no defence witness is present then the evidence of the defence shall deemed to be closed. He further submitted that the prosecution evidence has already been closed and as per the aforesaid order, 20 effective opportunities were availed of by the accused (Petitioners) and in the aforesaid facts and circumstances, the present petition is liable to be dismissed. He also submitted that on merits also the present petition does not deserve to succeed and referred to the complaint (Annexure P-5) in this regard. While referring to Para No.7 of the complaint, he submitted that three cheques were issued by the petitioners which were presented in the Bank. It has been specifically averred in the complaint that all the cheques were issued with the signatures of Atul Goyal (Petitioner No.2), who is the authorized signatory on behalf of petitioner No.3-Company and all the cheques were issued in the presence and consultation of petitioners No.1 & 2, since both of them are real brothers and they are liable jointly and severely along with petitioner No.3-Company for the outstanding payment of the complainant. He has also ref