J U D G M E N T

DINESH KUMAR SHARMA, J. (Oral)

1. Present petition has been filed under section 482 CrPC seeking to set aside the order of the Ld. ASJ, THC, dated 07.07.2022 passed in Crl. Rev Pet No. 286/2022 titled Whitefield Overseas Ltd. vs. M/S Diat Agro Holdings Pvt. Ltd., whereby, the Ld. Court partially allowed the revision petition filed by the respondents herein and set aside the order of the Ld. MM to the extent of summoning the present respondents for the alleged offence under section 138 NIA. The petitioner thus seeks to restore the summoning order dated 28.01.2022 passed in CC No. 2352/2021 vide which the respondents along with others were summoned for the offence alleged under section 138 NIA.

2. Petitioner company is engaged in the sale, purchase, import and export of rice and is stated to have been supplying consignments of rice to Whitefield Overseas Ltd (hereinafter referred to as accused company of which the respondents were directors) since 2013-14, as and when demanded. These consignments were usually delivered at the warehouse of the accused company and were received by the accused company’s warehouse In-charge after doing quality checks. For these, due considerations were made by way of postdated cheques.

3. Likewise, sometime in the year 2020, several such consignments of rice were delivered to the accused company upon which a total of 11 postdated cheques were issued for a sum of Rs. 85,26,520.39/- drawn on Woori Bank, Sikanderpur, in favour of the petitioner company. Upon presentation, the said cheques came to be dishonoured after which the MD of the accused company namely Mr. Sumeet Saluja assured the petitioner that the cheque amount, balance amount along with interest shall be paid. However, since the accused company failed to discharge its liability, the petitioner was constrained to serve demand notice dated 06.01.2021 upon the accused company. In response, vide letters dated 04.01.2021 and 15.01.2021 the accused company denied such liability and also disputed the supply and quality of rice. The petitioner also issued their response vide letter dated 14.02.2021.

4. Thus, since no payment was made within the stipulated time, the petitioner instituted a complaint case under section 138 NIA against the said 11 cheques. However, the Ld. MM upon perusal of the complaint, vide order dated 28.01.2022, held that 4 out of the 11 cheques were outdated, and the case was thus limited to the issue of only 7 cheques. Ld. MM taking cognizance of the offence under 138 NIA summoned the respondents herein, Mr. Sumeet Saluja (MD of the accused company) and the accused company.

5. Thereafter revision petition was moved by the above said accused persons and the revisional court partly allowing the revision petition set aside the summoning qua the respondents herein (petitioner Nos. 2 & 4 therein) while upholding the summoning of the accused company (petitioner No. 1) and Mr. Sumeet Saluja (petitioner No. 3). Ld. Court held that admittedly Mr. Sumeet Saluja is the MD and authorized signatory of the accused company, and the respondents herein are the directors of the accused company.

6. In the reply to the present petition, it has been vehemently argued that the cheques in question were neither signed by the respondents, nor were there any specific averments in the complaint to hold them responsible for any offence u/s 138 NI Act. It has been stated in the reply that the Respondent No 1/Vijay Kumar Saluja is the father of the MD and is an independent director of the company. Attention has been brought to the provisions contained under Section 196 (3)(a) of the Companies Act, 2013, which enumerates that any company cannot continue or appoint the employment of any person as a managing director or a whole-time director who is below the age of 21 years or has attained the age of seventy years.

7. It has been submitted that the above provision makes it clear that the allegations u/s 138 NI Act cannot be made out against the Res