Punjab-Haryana High Court
Jai Parkash Jaiswal And Others vs M/S Bibby Financial Services And Others on 25 February, 2014
CRM-M-34865 of 2013 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
*****
CRM-M-34865 of 2013
Date of Decision: 25.02.2014
Jai Parkash Jaiswal and others ... Petitioners
Versus
M/s Bibby Financial Services and others ... Respondents
CORAM: HON'BLE MR. JUSTICE MAHAVIR S. CHAUHAN
Present: Mr. Sudhir Aggarwal, Advocate,
for the petitioners.
Mr. M.S.Vinaik, Advocate,
for respondent No.1.
Mr. Sandeep Sharma, Advocate,
for respondent No.2.
MAHAVIR S. CHAUHAN, J. (ORAL)
Heard.
The petitioners, who, admittedly, are Directors of M/s Shree Sanyeeji Steel and Power Ltd. (hereinafter referred to as 'the Company'), have brought this petition praying for quashing of the complaint (Annexure P-1) under Negotiable Instruments Act, 1881 (for short, 'the Act') and summoning order (Annexure P-2) on the plea that in the complaint (Annexure P-1), it has not been pleaded by the complainant/respondent No.1 that the petitioners are responsible for day to day affairs of the afore-said company.
Learned counsel appearing for the petitioners also relies upon Mrs. Anita Malhotra Vs. Apparel Export Promotion Council and another, Virendra singh adhikari 2014.03.04 17:17 I attest to the accuracy and integrity of this document High Court Chandigarh CRM-M-34865 of 2013 -2- 2011(4) RCR (Civil) 930, to contend that in the absence of pleadings to show that the Directors are actually and factually responsible for running of day to day affairs of the company, a complaint against them cannot be maintained.
Before proceeding further, it may be pointed out that against the order dated 23.02.2012 issuing process against the petitioners, there is a specific remedy available to the petitioners under Section 397 of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.') but the petitioners have chosen to by-pass that remedy and have rushed to this Court under Section 482, Cr.P.C. To my mind, though, this Court has very wide power under Section 482, Cr.P.C. but this provision can be invoked only if there is no other remedy available under the Cr.P.C. or any other law in vogue. That being so, this Court would have relegated the petitioners to the learned Sessions Court under Section 397, Cr.P.C. and would not have gone into the merits of the case but the learned counsel for the petitioners persists with the prayer to have a decision on merits of the case and find out if a complaint is, at all, maintainable.
As aforesaid, the only ground put-forth on behalf of the petitioners is that in the complaint there is no specific averment that the petitioners are responsible for day to day affairs of the company aforesaid. A perusal of Para 3 of the complaint (Annexure P-1) would show that it has been specifically stated therein that the present petitioners are responsible for the day to day acts and conduct of the business of the company. Then, in Para 7 of the complaint (Annexure P-1), it has been stated that petitioner No.1-Jai Prakash Jaiswal gave an undertaking on 12.11.2010 to the effect that in the event of the company Virendra singh adhikari 2014.03.04 17:17 I attest to the accuracy and integrity of this document High Court Chandigarh CRM-M-34865 of 2013 -3- failing to make payment of the outstanding amount within a period of seven days, the complainant would be at liberty to present the cheques for encashment and that the accused company would not issue "stop payment"
instructions to the bankers. In Para 8 of the complaint (Annexure P-1), it is stated that the cheques in question were issued by accused Nos.1 to 5, including the petitioners.
In view of these averments, the contention that the complaint is silent with regard to the fact that petitioners are responsible for day to day affairs of the company is found to be untenable and the judgment relied upon by the learned counsel for the petitioners is rendered inapplicable. It may be added here that for the purpose of issuing process under Section 204, Cr.P.C., the Court has to see only a prima facie case to exist and cannot delve deep in the evidence to find out whether or not the case shall terminate into conviction of the accused person(s). A glance across the complaint, in my opinion, brings out a case for summoning of the accused, including the petitioners, to face trial under Sections 138/142 of the Act.
In the circumstances, no case is made out to quash the complaint (Annexure P-1) and the subsequent summoning order.
Dismissed.
(MAHAVIR S. CHAUHAN) JUDGE 25.02.2014 adhikari Virendra singh adhikari 2014.03.04 17:17 I attest to the accuracy and integrity of this document High Court Chandigarh