Delhi District Court
Mr. Sunil Aggarwal (Director) vs State Of Delhi on 1 November, 2013
IN THE COURT OF SH. RAJENDER KUMAR SHASTRI
ADDL. SESSIONS JUDGE02: SOUTH EAST
SAKET COURT: NEW DELHI
In Criminal Revision Nos. 29/12, 30/12, 31/12, 32/12, 33/12, 29/13,
30/13, 51/13, 52/13, 53/13, 54/13, 55/13, 93/13, 94/13, 95/13, 96/13 &
97/13
IN RE: Criminal Revision No. 29/12
1. Mr. Sunil Aggarwal (Director)
2. Mrs. Uma Satish Goel (Director)
3. Sh. Shankar Narayan Iyar (Director)
4. Sh. Satyadeep Sahukar (Director)
5. Sh. Aditya Goel (Additional Director)
Petitioners No.1 to 5 are having its office at
Village Kotmar Mahapalli,
District Raigarh - 496 001
Chhattisgarh. . . . . . Petitioners
VERSUS
1. State of Delhi
Through its
Addl. Public Prosecutor
At - Department of Prosecution,
Saket Court, New Delhi.
2. Anurag Srivastava (Authorized Representative)
1 of 27
M/s Goyal MG Gases Private Limited
53, Friends Colony (East), New Delhi.
. . . . . Respondents
__________________________________________________________
Date of Institution : 31.05.2012
Date when arguments were heard : 26.10.2013
Date of Order : 01.11.2013
IN RE: Criminal Revision No. 30/12
1. Mr. Sunil Aggarwal (Director)
2. Mrs. Uma Satish Goel (Director)
3. Sh. Shankar Narayan Iyar (Director)
4. Sh. Satyadeep Sahukar (Director)
5. Sh. Aditya Goel (Additional Director)
Petitioners No.1 to 5 are having its office at
Village Kotmar Mahapalli,
District Raigarh - 496 001
Chhattisgarh. . . . . . Petitioners
VERSUS
1. State of Delhi
Through its
Addl. Public Prosecutor
At - Department of Prosecution,
Saket Court, New Delhi.
2 of 27
2. Anurag Srivastava (Authorized Representative)
M/s Goyal MG Gases Private Limited
53, Friends Colony (East), New Delhi.
. . . . . Respondents
__________________________________________________________
Date of Institution : 31.05.2012
Date when arguments were heard : 26.10.2013
Date of Order : 01.11.2013
IN RE: Criminal Revision No. 31/12
1. Mr. Sunil Aggarwal (Director)
2. Mrs. Uma Satish Goel (Director)
3. Sh. Shankar Narayan Iyar (Director)
4. Sh. Satyadeep Sahukar (Director)
5. Sh. Aditya Goel (Additional Director)
Petitioners No.1 to 5 are having its office at
Village Kotmar Mahapalli,
District Raigarh - 496 001
Chhattisgarh. . . . . . Petitioners
VERSUS
1. State of Delhi
Through its
Addl. Public Prosecutor
At - Department of Prosecution,
Saket Court, New Delhi.
3 of 27
2. Anurag Srivastava (Authorized Representative)
M/s Goyal MG Gases Private Limited
53, Friends Colony (East), New Delhi.
. . . . . Respondents
__________________________________________________________
Date of Institution : 31.05.2012
Date when arguments were heard : 26.10.2013
Date of Order : 01.11.2013
IN RE: Criminal Revision No. 32/12
1. Mr. Sunil Aggarwal (Director)
2. Mrs. Uma Satish Goel (Director)
3. Sh. Shankar Narayan Iyar (Director)
4. Sh. Satyadeep Sahukar (Director)
5. Sh. Aditya Goel (Additional Director)
Petitioners No.1 to 5 are having its office at
Village Kotmar Mahapalli,
District Raigarh - 496 001
Chhattisgarh. . . . . . Petitioners
VERSUS
1. State of Delhi
Through its
Addl. Public Prosecutor
At - Department of Prosecution,
Saket Court, New Delhi.
4 of 27
2. Anurag Srivastava (Authorized Representative)
M/s Goyal MG Gases Private Limited
53, Friends Colony (East), New Delhi.
. . . . . Respondents
__________________________________________________________
Date of Institution : 31.05.2012
Date when arguments were heard : 26.10.2013
Date of Order : 01.11.2013
IN RE: Criminal Revision No. 33/12
1. Mr. Sunil Aggarwal (Director)
2. Mrs. Uma Satish Goel (Director)
3. Sh. Shankar Narayan Iyar (Director)
4. Sh. Satyadeep Sahukar (Director)
5. Sh. Aditya Goel (Additional Director)
Petitioners No.1 to 5 are having its office at
Village Kotmar Mahapalli,
District Raigarh - 496 001
Chhattisgarh. . . . . . Petitioners
VERSUS
1. State of Delhi
Through its
Addl. Public Prosecutor
At - Department of Prosecution,
Saket Court, New Delhi.
5 of 27
2. Anurag Srivastava (Authorized Representative)
M/s Goyal MG Gases Private Limited
53, Friends Colony (East), New Delhi.
. . . . . Respondents
__________________________________________________________
Date of Institution : 31.05.2012
Date when arguments were heard : 26.10.2013
Date of Order : 01.11.2013
IN RE: Criminal Revision No. 29/13
1. Sh. Sunil Aggarwal
Pool Bhogada, Jahangirabad
Bhopal46020 M.P. . . . . . Petitioner
VERSUS
1. M/s Goyal MG Gases Pvt Ltd.
53, Friends Colony (East)
New Delhi. . . . . . Respondent
__________________________________________________________
Date of Institution : 25.04.2013
Date when arguments were heard : 26.10.2013
Date of Order : 01.11.2013
IN RE: Criminal Revision No. 30/13
1. Sh. Shankar Narayan Iyar
H7 Bag Mugalia Extn.
Bhopal462043 M.P. . . . . . Petitioner
VERSUS
1. M/s Goyal MG Gases Pvt Ltd.
6 of 27
53, Friends Colony (East)
New Delhi. . . . . . Respondent
__________________________________________________________
Date of Institution : 25.04.2013
Date when arguments were heard : 26.10.2013
Date of Order : 01.11.2013
IN RE: Criminal Revision No. 51/13
1. Sh. Satish Goel
6, Ram Kunj, Daga Layout, North
Ambazari Road, Nagpur440033 . . . . . Petitioner
VERSUS
1. M/s Goyal MG Gases Pvt Ltd.
53, Friends Colony (East)
New Delhi. . . . . . Respondent
__________________________________________________________
Date of Institution : 01.07.2013
Date when arguments were heard : 26.10.2013
Date of Order : 01.11.2013
IN RE: Criminal Revision No. 52/13
1. M/s Ind Synergy Limited
624, Urla Indl. Area
Rajpur, Chhattisgarh493221
Through its authorized representative
Vishwanath Rathod . . . . . Petitioner
VERSUS
1. M/s Goyal MG Gases Pvt Ltd.
7 of 27
53, Friends Colony (East)
New Delhi. . . . . . Respondent
__________________________________________________________
Date of Institution : 01.07.2013
Date when arguments were heard : 26.10.2013
Date of Order : 01.11.2013
IN RE: Criminal Revision No. 53/13
1. Sh. Satyadeep Sahukar
Near Ram Mandir, Shanti Nagar
Rajpur492007, Chhattisgarh
. . . . . Petitioner
VERSUS
1. M/s Goyal MG Gases Pvt Ltd.
53, Friends Colony (East)
New Delhi. . . . . . Respondent
__________________________________________________________
Date of Institution : 01.07.2013
Date when arguments were heard : 26.10.2013
Date of Order : 01.11.2013
IN RE: Criminal Revision No. 54/13
1. Mrs. Uma Satish Goel
6, Ram Kunj, Daga Layout, North
Ambazari Road, Nagpur440033 . . . . . Petitioner
VERSUS
1. M/s Goyal MG Gases Pvt Ltd.
53, Friends Colony (East)
8 of 27
New Delhi. . . . . . Respondent
__________________________________________________________
Date of Institution : 01.07.2013
Date when arguments were heard : 26.10.2013
Date of Order : 01.11.2013
IN RE: Criminal Revision No. 55/13
1. Sh. Aditya Goel
6, Ram Kunj, Daga Layout, North
Ambazari Road, Nagpur440033 . . . . . Petitioner
VERSUS
1. M/s Goyal MG Gases Pvt Ltd.
53, Friends Colony (East)
New Delhi. . . . . . Respondent
__________________________________________________________
Date of Institution : 01.07.2013
Date when arguments were heard : 26.10.2013
Date of Order : 01.11.2013
IN RE: Criminal Revision No. 93/13
1. Sh. Satish Goel
6, Ram Kunj, Daga Layout, North
Ambazari Road, Nagpur440033 . . . . . Petitioner
VERSUS
1. M/s Goyal MG Gases Pvt Ltd.
53, Friends Colony (East)
9 of 27
New Delhi. . . . . . Respondent
__________________________________________________________
Date of Institution : 19.10.2013
Date when arguments were heard : 26.10.2013
Date of Order : 01.11.2013
IN RE: Criminal Revision No. 94/13
1. Sh. Aditya Goel
6, Ram Kunj, Daga Layout, North
Ambazari Road, Nagpur440033 . . . . . Petitioner
VERSUS
1. M/s Goyal MG Gases Pvt Ltd.
53, Friends Colony (East)
New Delhi. . . . . . Respondent
__________________________________________________________
Date of Institution : 19.10.2013
Date when arguments were heard : 26.10.2013
Date of Order : 01.11.2013
IN RE: Criminal Revision No. 95/13
1. Sh. Satyadeep Sahukar
Near Ram Mandir, Shanti Nagar
Raipur492007, Chhattisgarh . . . . . Petitioner
VERSUS
1. M/s Goyal MG Gases Pvt Ltd.
53, Friends Colony (East)
10 of 27
New Delhi. . . . . . Respondent
__________________________________________________________
Date of Institution : 19.10.2013
Date when arguments were heard : 26.10.2013
Date of Order : 01.11.2013
IN RE: Criminal Revision No. 96/13
1. M/s Ind Synergy Limited
624, Urla Indl. Area
Raipur, Chhattisgarh493221
Through its authorized representative
Vishwanath Rathod . . . . . Petitioner
VERSUS
1. M/s Goyal MG Gases Pvt Ltd.
53, Friends Colony (East)
New Delhi. . . . . . Respondent
__________________________________________________________
Date of Institution : 19.10.2013
Date when arguments were heard : 26.10.2013
Date of Order : 01.11.2013
IN RE: Criminal Revision No. 97/13
1. Mrs. Uma Satish Goel
6, Ram Kunj, Daga Layout, North
Ambazari Road, Nagpur440033 . . . . . Petitioner
VERSUS
11 of 27
1. M/s Goyal MG Gases Pvt Ltd.
53, Friends Colony (East)
New Delhi. . . . . . Respondent
__________________________________________________________
Date of Institution : 19.10.2013
Date when arguments were heard : 26.10.2013
Date of Order : 01.11.2013
J U D G M E N T
By this common order, I dispose of all seventeen revision petitions mentioned above. Through impugned orders, the petitioners have been summoned as accused, to face trial for offence punishable under Section 138 of The Negotiable Instruments Act.
As per its case, complainant is a private limited company registered under the Companies Act, 1956. Complaints are filed by it through its authorised representative Sh. Anurag Srivastava, who is stated to be well conversant with the facts of the cases and duly authorised by Board of Directors of complainant company vide its resolution dated 29.06.2010. Petitioner / accused no. 1 is a limited company registered and incorporated under the Companies Act, 1956. Petitioner / accused no. 2 and 3 (Satish Goel and Aditya Goel) are director and managing director of accused no. 1 company while accused no. 4 to 7 namely Sunil Agarwal, Mrs. Uma Satish Goel, Shankar Narayan Iyar and Satyadeep Sahukar are directors of accused no. 1.
12 of 27 Accused no. 2 to 7 are in charge of and responsible jointly and severally for day to day working, conduct and business affairs of accused no. 1 company.
Petitioner / accused no. 2 (Satish Goel) with the consent, knowledge and approval of accused no. 3 to 7 and also on behalf of accused no. 1 approached the complainant at its office for the supply of Oxygen, Nitrogen Gases by installation of an Air Separation Unit on Build, Own and Operate (BOO) basis to the accused no. 1. Complainant agreed to install Air Separation Unit and supply of the gases from time to time. An agreement was reached between these parties on 30.05.2008. Accused no. 1 had to pay fixed facility charges of Rs.26.00 lacs per month to the complainant from the date of commissioning of the production facility till the end of contract period irrespective of consumption of gases by accused no. 1. The latter issued 60 post dated cheques of Rs.26.00 lacs each towards monthly fixed facility charges for five years in advance to the complainant. It was agreed that second and third lot of 60 cheques each shall be handed over to accused no. 1 before the date of expiry of last cheques of first and second lot of cheques respectively. Said cheques were issued to the complainant accordingly at its Delhi office, all of which are drawn at Bank of India, Raigarh Branch, Chhattisgarh.
All these cheques were dishonoured on being presented by 13 of 27 the respondent / complainant through its banker, State Bank of India, CAG Branch, Jawahar Vyapar Bhawan, Tolstoy Marg, New Delhi either with remarks 'payment stopped by attachment order' or 'payment stopped by drawer'. The petitioners / accused failed to make payment of cheque amounts despite service of legal notices by the complainant and hence aforesaid cases.
As per the petitioners, petitions in hand are maintainable before this court, orders in question not being interlocutory orders within the meaning of Section 397 of The Code. Petitioners cited a case on this point titled as Dhariwal Tobacco Products Limited & ors. Vs. State of Maharashtra & anr. (2009) 2 SCC 370.
It is contended by Ld. Counsel for petitioners that impugned orders are not legally tenable, due to following reasons : (A) Even as per case of complainant, agreement dated 30.05.2008 was reached between the parties at Raigarh (Chhattisgarh). The petitioners / accused are residing at a place which is beyond the territorial jurisdiction of Delhi courts. Ld. MM did not conduct any enquiry as required under Section 202 Cr.P.C. which was a 1mandatory and in the absence of which, impugned orders summoning the petitioners were contrary to law. The petitioners relied upon following cases in this regard : i. K. T. Joseph Vs. State of Kerala & anr (2009) 15 Supreme Court 14 of 27 Cases 199 ii. Udai Shankar Awasthi Vs. State of UP and anr. (2013) 2 SCC 435 iii. Shivjee Singh Vs. Nagendra Tiwary & Ors. (2010) 7 SCC 578 iv. National Bank of Oman Vs. Barakara Abdul Aziz & anr. (2013) 2 SCC 488 v. S. C. Mathur Vs. Elektronic Lab & Ors. 2010 (2) Bom. (Crl.) 385 vi. Smt. Neeta Sinha Vs. P. S. Raj Steels Pvt. Ltd. 2010 (4) JCC (NI) 305 vii. Savesa Sidhu Vs. Harleen Sidhu & anr. 2011 (2) RCR (Criminal) 442 viii. Harjinder Kaur Sandhu Vs. Surinder Kaur Sandhu in Crl. Misc. No. M36058 of 2009 (O&M) (B) As per complainant, the petitioners / accused no. 2 and 3 are whole time director and managing director respectively of accused no. 1, petitioner / accused no. 3 to 5 are directors of said accused but it is not clarified by the complainant as how these petitioners were actually involved in the conduct of business of M/s Ind Synergy Ltd. (accused no. 1). Omnibus allegations by merely reproducing the phraseology of act was not enough to summon the petitioners as accused. It was incumbent upon the complainant to establish as how the petitioners were in charge and responsible for day to day business of said accused. Moreover, three directors namely Mrs. Uma Satish Goel, Sh. Shankar 15 of 27 Narayan Iyar and Sh. Sunil Agarwal were not involved in day to day affairs of accused no. 1 company in any manner. They had resigned from Board of Directors of said accused no. 1 w.e.f. 15.04.2011, 06.05.2011 and 30.09.2011 respectively. Ld. Counsel gave list of dozens of cases decided by Apex Court and various higher courts touching issues raised by him. Prominent of which are enlisted as : i. N. K. Wahi Vs. Shekhar Singh & Ors. 2007 (1) JCC (NI) 112 ii. Major L. K. Toshkhani (Retd.) Vs. Ravi Kumar & anr. 2007 (2) JCC (NI) 121 iii. Ashwani Dewan Vs. State & anr. 2007 (2) JCC (NI) 2004 iv. Pepsi Foods Ltd. Vs. Special Judicial Magistrate 1998 SCC (Cri.) 1400 v. K. Srikanth Singh Vs. North East Securities Ltd. & anr. 2007 (IV) AD (Cr.) (SC) 357 vi. Smt. Bina Sharma Vs. HDFC Bank Ltd. 2009 (4) JCC (NI) 257 vii. R. K. Sinha Vs. State & anr. 2009 (4) JCC NI 262 viii. J. N. Bhatia & Ors. Vs. State & anr. 2007 III AD (Delhi) 142 ix. Charanjit Singh Vs. D. B. Merchang Banking Services Ltd. 2001 III AC (Delhi) 805 x. Raminder Kaur Narula Vs. Prem Colour Chemicals (P) Ltd. Crl. M. C. 2690 of 2004 xi. Katta Sujatha Vs. Fertilizers & Chemicals Travancore Ltd. & ors.
16 of 27 2003 SCC (Cri.) 151 xii. J. B. Garg Vs. State & anr. 2006 (3) JCC (NI) 245. xiii. Dr. (Mrs.) Sarla Kumar Vs. SREI International Finance Ltd. 132 (2006) DLT 363 xiv. Mrs. Leela Rathnam Vs. M/s Vikas Electo Chem Agencies Pvt. Ltd. 2004 (2) CRJ 751 xv. DCM Financial Services Ltd. Vs. J. N. Sareen & anr. 2008 (2) JCC (NI) 233 xvi. National Small Industries Corporation Ltd. Vs. Harmeet Singh Paintal & anr. (2010) 3 SCC 330.
(C) For initiation of proceedings under Section 138 of NI Act, it is necessary that there should be legally enforcible debt against the accused. There is no averment in the complaint to the effect that cheques in question were issued by accused no. 1 company in discharge of any debt or other liability. A perusal of contract dated 30.05.2008 reveals that fixed facility charges (FCC) of Rs. 26.00 lacs per month were payable from the date of commissioning of the production facility and that accused no. 1 company had given first lot of 60 post dated cheques of Rs.26.00 lacs each towards payment of monthly fixed facility charges in advance. It is not the case of complainant even that production facility had been commissioned by it (complainant) by certain date and accused no. 1 company as such had become liable for 17 of 27 making payment. Apparently said 60 post dated cheques were issued in advance towards the payment of monthly fixed facility charges which were not issued in discharge of any debt or other liability. Following cases are cited by the petitioners in this regard : i. Bharatbhai K. Patel Vs. CL Verma 2002 Cri.L.J. 3469 ii. Rangappa Vs. Sri Mohan (2010) 11 SCC 441 (D) The impugned orders are bad in law as Ld. MM did not clarify as how prima facie offence was made out against the petitioners. Impugned orders are vague and not supported by any reason. Ld. Counsel reminded mandates given by higher courts particularly the Supreme Court of India which held that summoning of a person as an accused is a serious matter. Reliance is placed upon following cases in this regard : i. State of Rajasthan Vs. Sohan Lal & Ors. 2004 (5) SCC 573 ii. Umar Usman Chamadia Vs. Abdul & anr. 2004 (13) SCC 234 iii. State of Punjab Vs. Bhag Singh 2004 (1) SCC 547 iv. Paul George Vs. State 2002 (2) SCC 406 v. Notified Area Committee Vs. Additional Director, Consolidation and anr. 2002 (10) SCC 87 vi. State of H.P. Vs. Tara Dutt & anr. 2000 (1) SCC 230 vii. Pepsi Food Ltd. & anr. Vs. Special Judicial Magistrate & Ors. 1998 SCC (Cri.) 140 18 of 27 Countering the contentions as raised by Ld. Counsel for the petitioners, Ld. Counsel for the respondent, claimed that when court examined complainant and his witnesses (if any) as in this case, it was sufficient compliance of Section 202 Cr.P.C. Separate enquiry as envisaged by said provision was not required. Ld. Counsel referred following cases on this topic : i. Krishna Murari Lal Vs. IFCI Factors Ltd. Crl.M.C. 3937/2012 dated 27.11.2012 ii. Amandeep Singh Vs. Balwinder Singh Crl.M.C. 39010/2011 iii. S. K. Sinha, Chief Enforcement Officer Vs. Videocon International Ltd. 2008 (2) SCC 492 iv. Monica Gogia Vs. State 2005 CrlLJ 3198.
It is further the plea of Ld. Counsel representing respondent that according to Section 141 of NI Act, every person who was incharge of and responsible to the company for conduct of its business as well as company itself were presumed to be guilty of offence. Now it was for the accused to show that they were not responsible for conduct of business of the company. All this is matter of evidence, same could not be looked into at primary stage of summoning. Ld. Counsel referred a case titled as S. V. Muzumdar Vs. Gujarat State Fertilizers Company Ltd. 2005 (4) SCC 173.
In the opinion of Ld. Counsel for respondents, it was not 19 of 27 necessary for the Magistrate to pass a detailed order for summoning of accused. A perusal of impugned order shows that Ld. Counsel applied his mind. Ld. Counsel referred following cases in this regard : i. Nupur Talwar Vs. CBI (2012) 4 SC 217 ii. Kanti Bhadra Shah & anr. Vs. State of West Bengal 2000 (1) SCC 722 iii. Bhushan Kumar Vs. State 2012 (5) SCC 424.
Respondents neither questioned the maintainability of present petitions before this court nor disputed the claim of petitioners that impugned orders are not interlocutory orders. I do not think it proper to discuss said issue in detail.
Section 202 of The Code of Criminal Procedure prescribes for an enquiry by the Magistrate either himself or an investigation by a police officer or such other person as he thinks fit. After enactment of Act 25 of 2005, it has become obligatory for the Magistrate to conduct such an enquiry, in case the accused is residing at a place beyond the area in which he exercises his jurisdiction. How said enquiry is to be conducted is not described by the legislature. The Apex court in case S. K. Sinha, Chief Enforcement Officer Vs. Videocon International Ltd. (Supra) clarified that object of such enquiry was to ascertain as to there was prima facie case against the accused. According to their lordships, the scope of this enquiry is extremely limited and the 20 of 27 Magistrate is called upon to see as to whether there is sufficient ground for summoning the accused and not as to whether there is sufficient ground for the conviction of accused. As discussed above, when the trial court examined the complainant and his witnesses (if any) and passed order of summoning after considering the evidence adduced on record, in my opinion, it was sufficient enquiry as contemplated by Section 202 of the Code.
True, as it was held by the Supreme Court in Pepsi Foods Ltd. Vs. Special Judicial Magistrate (Supra) and GHCL Employees Stock Option Trust Vs. India Infoline Ltd. 2013 (4) SCC 505 that summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The Magistrate has to refer his satisfaction with regard to the existence of a prima facie case on the basis of specific allegations made in the complaint supported by satisfactory evidence and other material on record. The polemic question to be answered here is as to whether Ld. MM did not scrutinise the evidence carefully or no prima facie offence was made out against the petitioners. In GHCL Employees Stock Option Trust case (Supra), the Magistrate summoned the respondents to face trial for offences punishable under Section 415/409/34, 120B 21 of 27 IPC, on a complaint lodged by the appellant. After bare perusal of complaint and allegations made therein, Hon'ble Judges of the Apex court did not find any specific allegations against respondent no. 2 to 7 in any of paragraphs of that complaint. Though in Para 2 of that complaint, it was mentioned that respondent no. 2 to 6 were looking after day to day affairs of the company. It was not mentioned as with whom the complainant or its authorised representative interacted, although it was claimed in Para no. 11 of that complaint that the complainant on numerous occasions met respondent no. 2 to 7 and requested them to refund the amount but it was not the specific allegation about the date of meeting and whether it was an individual meeting or collective meeting. Similarly, there was no allegation of complainant that any particular director or managing director fabricated the debit note. Their lordships noticed that entire complaint was bald and vague allegations were levelled against said respondents.
Coming to case in hands, it is not in dispute that cheques in question were issued by accused no. 1. From evidence adduced by the complainant it appears that said cheques were returned back dishonoured on being presented by the complainant through its banker and the accused were informed about the fate of cheques through legal notices. It is not the plea of petitioners / accused that the cheque amounts were paid to the complainant after receipt of those notices. It is 22 of 27 not denied that petitioners were directors of accused no. 1 although it is claimed that three of them namely Mrs. Uma Satish Goel, Sh. Shankar Narayan Iyar and Sh. Sunil Agarwal had resigned from directorship and hence were not responsible. According to Section 141 of NI Act if the person committing an offence under Section 138 is a company, every person who at the time the offence was committed, was incharge of and was responsible to that company for the conduct of its business, as well as the company itself shall be deemed to be guilty of the offence. Apart from all this, according to Subsection 2 of Section 141 where any offence under said act has been committed by a company and it is proved that the offence had been committed with the consent or connivance of or is attributable to any negligence on the part of any director, manager or other officer of the company, such director, manager, secretary or any other persons shall also be deemed to be guilty of that offence. In this way, it is not necessary that the petitioners were directors at the time when offence in question was committed, it was enough to implicate them if there is evidence that they were connived with or consented or did any act which attributed to the commission of offence. All this is matter of evidence. Now it is for the petitioners / accused to establish that they were not responsible for the offence in question or had already resigned at the time when offence in question was committed The petitioners could take this plea by 23 of 27 approaching trial court. I find force in my view from case titled as Rajesh Aggarwal Vs. State & anr. 171 (2010) DLT 51 decided by our own High Court.
If complainant has not disclosed as what part was being played by each of petitioners in day to day affairs of accused company, it was internal arrangement of that accused, complainant can not be expected to implead all this in his complaint. Law obliges a party to come with evidence, which is in better position to adduce it before the court. Moreover, the complainant has already mentioned as what act was done by each of petitioners / accused. At this preliminary stage of case, the court is required to take a prima facie view about involvement of accused in offence under consideration.
True, to give reasons is a healthy tradition and it is not necessary that order should be voluminous. Explaining the need for reasons, it was held by the Apex court in case titled as Notified Area Committee Vs. Additional Director, Consolidation and anr. (Supra) reasons are flesh and blood of judicial adjudication and such reasons must be shown in orders, which are liable to be challenged in the superior court. Following is explained by the Supreme Court in Dr. Nupur Talwar Vs. CBI (Supra) : "There is no legal requirement that the trial court should write an order showing the reasons for framing of charge, why should already burdened trial courts be further 24 of 27 burdened with such an extra work. The time has reached to adopt all possible measures to expedite the court proceedings and to chalk out measures to avert all roadblocks causing avoidable delays".
In case Umar Usman Chamadia (Supra) Hon'ble Judges of the Apex Court stated that reasons need not be very detail or elaborate, lest it may cause prejudice to the cause of the parties, but must be sufficiently indicative of the process of reasoning leading to the passing of the impugned order. The need for delivering a reasoned order is a requirement of law, which has to be complied with, in all appealable orders.
Even if the Apex Court counted the need for giving reasons, Hon'ble Judges refused to remand the case back for the want of reasons. Taking the case in hands again, even if Ld. Magistrate did not explain as how prima facie offfence was made out against accused after hearing both of parties, a prima facie case has been found made against the petitioners.
Trite it to say that some cheques issued by the petitioners / accused are stated to have been returned back with reasons 'payment stopped by attachment order'. Section 138 NI Act prescribes for punishment, where a cheque drawn by a person on an account maintained by him with a banker is returned back unpaid, either because of the amount of money standing to the credit of that account is 25 of 27 insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account, by an agreement made with that bank.
A division bench of Bombay High Court in Rakesh Porwal Vs. Narayan Joglekar 1993 Crl.L.J. 680 observed that Section 138 regards the circumstances under which the dishonour has taken place as being wholly irrelevant and "the overriding clause in Section 138 revolves around the concept of inability to obtain payment, the manifold situation giving rise to that result being secondary". The court clarified as : "a clear reading of Section 138 leaves no doubt in our mind that the circumstances under which such dishonour takes place are required to be totally ignored. In this case the law only takes note of the fact that payment has not been forthcoming and it matters little that any of the manifold reasons may have caused this situation".
Trite it to say that offence under Section 138 of NI Act is made out only when the accused does not make payment of cheque amount, after service of legal notice. The very object of this notice is to enable the accused to make payment. If legal notice was served upon the petitioners / accused in this case, they had every opportunity to make payment of cheque amount. When cheque had been issued by the petitioner / accused in favour of complainant, in view of Section 139 it could be presumed that same were issued by the latters in discharge of their debt or other liability. Even if it was beyond the power of 26 of 27 petitioners / accused to get said cheque encashed due to attachment orders issued by any court, they could make payment of the cheque amount, after knowing the fate of cheques issued by them.
From the facts of the case a prima facie offence was made out against the petitioners / accused. I find no reason to interfere with the impugned orders. Petitions in hand are thus dismissed. Announced in the open court (RAJENDER KUMAR SHASTRI) today i.e 1st November, 2013 ASJ02/SE/ SAKET COURT NEW DELHI 27 of 27