CASE TITTLE: SHIKHA SHAH V RENU PROMOTERS PVT LTD
CASE NO: CRL.M.C. 456/2022 & CRL.M.A. 2059/2022
ORDER ON: 29.02.2024
QUORUM: . JUSTICE NAVIN CHAWLA
FACTS OF THE CASE:
The Petition filed by the petitioner herein challenges the order dated 03.12.2019 passed by the learned Metropolitan Magistrate, in the complaint filed by the respondent herein under Section 138 of the Negotiable Instruments Act, 1881
The facts leading to the present petition in question is that, The above complaint has been filed by the respondent alleging that the accused no.1 therein, that is, Govind Radhe Real Estate Private Ltd. approached the Director of the respondent company through the accused no.2 therein, Narsingh Shah, who is the husband of the petitioner, seeking financial assistance. It was further alleged that the accused no.1, through the accused no.2, had a business relationship with the Director of the respondent company. Further, the accused no.2 and the petitioner herein, who has been arrayed in the Complaint as the accused no.3, were tenants of the respondent’s sister company- M/s BDR Developers Pvt. Ltd., due to which, the respondent advanced a loan of Rs.1,85,00,000/- to the accused no.1. It was the understanding between the parties that the loan advanced by the respondent shall be repaid on or before 20.09.2019 along with interest @24% per annum. It is further alleged that in the month of February, 2019 the accused no.2 in the said complaint, approached the respondent and expressed his difficulty in paying the monthly interest/ installments of the loan. It is alleged that the accused no.1 with the consent of the petitioner herein and the accused no.2, who both are the Directors of the accused no.1, under the signatures of the accused no.2, handed over a cheque for a sum of Rs.2,35,00,000/- to the respondent with specific understanding that the respondent shall be at liberty to encash the said cheque and the same shall be honoured on presentation. It is alleged that relying upon the assurance, the cheque was duly presented by the respondent, however, the same was returned dishonoured with the remark ‘Account Blocked’. It is alleged that the respondent sent a legal notice dated to the accused, including the petitioner, however, no reply was received thereto within the stipulated period. Based on the above averments, the subject complaint was filed before the learned Trial Court. After hearing the arguments and considering the pre-summoning evidence, the learned Trial Court summoned the accused, including the petitioner vide order dated 03.12.2019. Aggrieved of the said order, the petitioner challenged the same by way of a revision petition before the learned PD&SJ, which came to be dismissed by the Order impugned herein.hence this petition.
LEGAL PROVISIONS:
Section 138 of the Negotiable Instruments Act, 1881 lays down that, returning of a cheque unpaid constitutes an offence only if such return is due to want of funds.
Section 141 of the Negotiable Instruments Act, 1881, talks about the offence by company
Section 482 of the Cr.P.C., talks about the inherent powers of High Court.
CONTENTIONS OF PETITIONER:
The petitioner through their counsel rellied on the judgment of the Supreme Court in S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla & Anr and submitted that the complaint lacks the basic and essential averments and, in the absence thereof, the petitioner cannot be summoned in the said complaint. The counsel further submits that there is no averment made in the complaint that the petitioner was in-charge of or was responsible to the accused no.1 company for the conduct of the business of the said company. further counsel comtented that mere averment that the cheque was issued with the consent of the petitioner, would not be sufficient to charge the petitioner of the offence under Section 138 read with Section 141 of the NI Act.
CONTENTIONS OF THE RESPONDENT:
The Respondent through their counsel rellied on the judgment of the Supreme Court in S.P.Mani & Mohan Dairy v. Dr.Snehalatha Elangovan and further submitted that Section 141 of the NI Act is in two parts, while the Sub-section (1) of Section 141 of the NI Act makes a person, who is in-charge of or was responsible to the company for its conduct, liable for the acts of the company,the counsel further contents that, Subsection (2) of Section 141 of the NI Act makes an official of a company including, inter alia, a Director on whose consent, connivance or neglect the offence is committed by the company, liable to be proceeded against.the counsel further submits tha, in the present case, the respondent has not only pleaded that the petitioner being a Director of the accused no.1 company was in-charge of and in control of the affairs of the accused no.1 company, but has also pleaded that the cheque which has been dishonoured was issued with the consent of the petitioner.counsel further submitted that, the summoning order has rightly been passed by the learned Trial Court.counsel also further submits that to the legal notice, a joint reply was given by the accused, including the petitioner herein. He submits that in the said reply also, there is no denial by the petitioner to the fact that the cheque was issued with her consent
COURTS ANALYSIS AND JUDGEMENT:
The court on having considered the submissions made by the learned counsels for the parties, having pursued the meterials on record, refereed to various judicial decisions and interpreted the legal provisions, court further observed that it is apparent that the power under Section 482 of the Cr.P.C. to quash a complaint has to be exercised very sparingly and where, read as a whole, the complaint does not lay the foundation for the offence,the court further opined that, if the substance of the allegations made in the complaint fulfill the requirement of Section 141 of the NI Act, the complaint has to proceed in accordance with law, The court further opined that,It is not necessary to reproduce the language of Section 141 of NI Act verbatim in the complaint, and the complaint is required to be read as a whole. Thev court further interpreted, Section 141 of the NI Act is in two parts. While Sub-section (1) of Section 141 of the NI Act extends the liability to be prosecuted to every person who, at the time the offence was committed, was incharge of and was responsible to the company for the conduct of its business, irrespective of whether such person is a Director, Manager, Secretary or other Officer of the Company, Sub-section (2) of Section 141 of the NI Act makes any person with whose consent or connivance or due to whose neglect as a Director, Manager, Secretary, or other Officer of the company, the offence has been committed by the Company, vicariously liable. The burden of proving the consent, connivance or neglect on behalf of the Director or other Officer of the company would rest upon the complainant. Therefore the court further opined that, In the present case, both the above factors are equally present. The respondent in its legal notice and also in the complaint, has made specific averments that the cheque in question was issued with the consent of the petitioner, who is a Director of the accused no.1 company. Though the complaint was filed with an averment that the reply to the legal notice had not been received, the respondent has now placed on record the copy of the reply dated 20.11.2019, which was received after the statutory period by the respondent from the accused including the petitioner herein. The court furthercontented that the same does not deny the above averment of the respondent that the cheque in question was issued with the consent the petitioner herein. Applying the principles laid down by the Supreme Court in S.P.Mani & Mohan Dairy (supra), therefore, the court further is of the view that, no fault can be found in the Impugned Order.the couirt further observed that in exercising its power under Section 482 Cr.P.C., does not act as a Court of appeal. The court further opined that, Its jurisdiction is confined to see that there is no miscarriage of justice.the court further opined that It cannot enter into a detailed examination of the evidence. However the court is of the view that, It is equally important to remind oneself of the limited scrutiny required at the stage of summoning the accused. The Court was not expected to minutely scrutinise the averments made in the Complaint as if they were statute. The Complaint has to be read as a whole and in reasonable manner, keeping in mind also the object of Section 138 of the NI Act. Applying the above principles as well, the court on finding no merit in the present petition, accordingly, dismissed. Off the same
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Judgement reviewed by: Sowmya.R
