Where disputed questions of facts are involved which need to be adjudicated and established during trial, it would be against principles of law to arrive at a conclusion without going into the merits of the case. Thus complaint U/S.138 NIA ought not be quashed by the High Court by taking recourse to S.482 Cr.P.C. This was held in SHYAM S. BAGESHRA V. STATE NCT OF DELHI & ORS. [CRL.M.C. 1792/2020] in the High Court of New Delhi by single bench consisting of JUSTICE SURESH KUMAR KAIT
Facts are that complaint against petitioner as director of accused company under Sections 138/141/142 of NIA, 1881 was made. Trial court held that prima facie offense was made and summoned accused. Directors of the accused company filed application seeking discharge and dismissal of complaint before the trial court, which was dismissed thus seeking quashing of these orders as well as the complaint in question.
The counsel for the petitioner contended that he is not Director but in fact an employee of accused-company. Nor he is authorized signatory to operate the bank accounts. Complainant has failed to establish responsibility of petitioner and relied on Supreme Court judgement in N.K.Wahi Vs. Shekhar Singh.
The counsel for respondent contended that petitioner had represented himself as the key managerial person responsible for day to day operations, pleas raised on questions of authorization can only be unfurled in trial, and therefore, the petition is liable to be dismissed.
The court referred to the Apex court judgment in N. Rangachari v. BSNL, where in it was held that, “27. We think that, in the circumstances, the High Court has rightly come to the conclusion that it is not a fit case for exercise of jurisdiction under Section 482 of the Code of Criminal Procedure for quashing the complaint. In fact, an advertence to Sections 138 and 141 of the Negotiable Instruments Act shows that on the other elements of an offence under Section 138 being satisfied, the burden is on the Board of Directors or the officers in charge of the affairs of the company to show that they are not liable to be convicted. Any restriction on their power or existence of any special circumstance that makes them not liable is something that is peculiarly within their knowledge and it is for them to establish at the trial such a restriction or to show that at the relevant time they were not in charge of the affairs of the Company. Reading the complaint as a whole, we are satisfied that it is a case where the contentions sought to be raised by the appellant can only be dealt with after the conclusion (sic commencement) of the trial.”
The court relied on the judgement of Rajeshbhai Muljibhai Patel & Ors. Vs. State Of Gujarat & Anr., wherein the following observations were made, “When disputed questions of facts are involved which need to be adjudicated after the parties adduce evidence, the complaint under Section 138 of the N.I. Act ought not to have been quashed by the High Court by taking recourse to Section 482 Cr.P.C.”
Considering the facts of the case and the earlier precedents the court held that, petitioner’s employment with the accused-company, whether or not the cheque in question was signed by him etc are the aspects which can be established during trial, that it would be against principles of law to arrive at a conclusion without going into the merits of the case. Thus dismissing the petition.
