Delhi District Court
Satinder Singh vs Kuldeep Kumar Kukreti on 12 October, 2018
IN THE COURT OF DR. NEERA BHARIHOKE
ADDL. SESSIONS JUDGE06:SOUTH EAST
SAKET COURT: NEW DELHI
Criminal Revision No.685/18
Satinder Singh
D199A, 15 Freedom Fighter
Enclave, Neb Sarai,
New Delhi. . . . . Revisionist
Versus
Kuldeep Kumar Kukreti
H. No. C67, Mahavir Enclave,
Part1, Palam Dabri Road,
New Delhi110045. . . . . Respondent
Date of Institution : 17.09.2018
Date of Arguments : 09.10.2018
Date of Order : 12.10.2018
O R D E R
1. Vide this order, I shall decide the present revision petition filed against the impugned order dated 26.07.2018 passed by the court of learned Metropolitan Magistrate (in short "MM")03 (NI Act), South East District, Saket Court, New Delhi in case CC No. 622043/2016 titled "Kuldeep Kumar Kukreti Vs. M/s RAS Build Home Pvt. Ltd. & Ors."
2. Briefly the facts giving rise to petition are that:
a) On 31.05.2013 the petitioner was appointed as a nominee CR No.685/18 Page 1 of 16 Director in M/s RAS Build Home Pvt. Ltd. (hereinafter referred to as the "company") a company which dealt in Building Activity. On 06.10.2013, an agreement to sell was entered into between the respondent and the company. Thereafter, certain payments were made by the respondent to the company to the tune of Rs.5,00,000/ at various intervals of time.
b) The petitioner remained a Director in the Company till 14.09.2014, when he submitted his resignation letter to the Company. The said resignation letter was duly served on the Company and on 15.10.2014 the petitioner filed the Form No.DIR11 with the Registrar of Companies indicating the cessation of the petitioner from Directorship of the company for the reason that the other director, Sh. Ravi Kumar, who has been summoned as accused no. 3 by the learned MM, was not cooperating in the business of the company and was further misrepresenting before the clients of the company.
c) On 08.01.2015 the respondent filed complaint case no. 662043 titled "Kuldeep Kumar Kukreti Vs. M/s Ras Buildhome Pvt. Ltd. & Ors." under section 138/141 NI Act, 1881 (hereinafter referred to as the "NI Act") before MM03 (SouthEast), Saket District Courts, Delhi interalia against the company, the petitioner and Sh. Ravi Kumar for dishonor of cheque nos. 330689 and 330699 for Rs.50,000/ (Rupees Fifty Thousand only) and Rs.2,00,000/ (Rupees two lacs only), respectively, each in favour of the respondent drawn on Yes Bank, Okhla Industrial Area, New Delhi and signed by CR No.685/18 Page 2 of 16 accused no. 3, Sh. Ravi Kumar.
d) On 08.01.2015, the respondent filed the complainant under section 138 of NI Act before the learned MM. On 09.02.2015, learned MM, after taking cognizance of the complaint, and after tendering of the presummoning evidence by way of affidavit by the respondent and also after perusing the Form32 filed by the respondent, summoned interalia the petitioner.
3. An application under section 251 of the Cr.P.C. for discharge of the petitioner was filed by the petitioner before the learned MM. The learned MM vide order dated 26.07.2018 (impugned order) dismissed the said application filed on behalf of the petitioner.
4. Petitioner, aggrieved by the filing of the complaint against him and the impugned order, has filed the present petition seeking setting aside of the same on the following grounds, each without prejudice to the other:
(a) Learned MM failed to appreciate that from the allegations made by the respondent in the impugned complaint, no offence is made out against the petitioner.
(b) Learned MM failed to appreciate that the petitioner had resigned from the directorship of the company, before the cheques in question were issued. Learned MM failed to take notice of the resignation given by the petitioner to the company CR No.685/18 Page 3 of 16 and the Form No.DIR11, which was filed by the petitioner with the Registrar of Companies (in short "ROC"), under his Digital Signature. Both these documents were filed alongwith the discharge application filed on behalf of the petitioner and were duly brought to the notice of the Learned MM.
(c) Learned MM has wrongly relied upon the judgment of the Hon. Supreme Court in "Amit Sibal Vs. Arvind Kejriwal", 2016 SCC Online SC 1516 while reaching to the conclusion that Magistrate in a summons case is not empowered to discharge/drop the proceedings against the summoned accused at the stage of section 251 Cr.P.C.
(d) Reliance has been placed on the observations made in the matter of Municipal Corporation of the Delhi Vs. Gurnam Kaur, (1989) 1 SCC 101. The reliance placed by the Learned MM on the decision of Hon'ble Supreme Court in Amit Sibal Vs. Arvind Kejriwal (supra) is clearly misplaced.
(e) Learned MM wrongly came to the conclusion that the reliance placed by the petitioner on the judgments of Hon'ble Delhi High Court in Urrshila Kerkar Vs. Make My Trip India Pvt. Ltd. passed in Crl. MC No. 2598/2012 dated 18.11.2013 and Rajeev Taneja Vs. NCT of Delhi & Ors. passed in Crl. MC No. 4733/2013 was misplaced as these judgments were passed prior to the judgment of the Hon. Supreme Court in Amit CR No.685/18 Page 4 of 16 Sibal Vs. Arvind Kejriwal (supra). It is submitted that the said two judgments of the Hon'ble Delhi High Court still hold ground as they follow the judgments of the Apex Court in Bhushan Kumar Vs. State (NCT of Delhi), (2012) 5 SCC 424 and Krishna Kumar Variar Vs. Share Shoppe, (2010) 12 SCC 485, which in no way have been overruled or even discussed by Hon'ble Apex Court in the judgment of Amit Sibal Vs. Arvind Kejriwal (supra).
(f) Learned MM failed to consider the law laid sown in the matter of Bhushan Kumar Vs. State (NCT of Delhi)', (2012) 5 SCC
424.
(g) Learned MM failed to appreciate that the petitioner filed the Form No.DIR11, which in itself is a conclusive and unimpeachable proof of resignation of a director from a company, before the date on which both the concerned cheques were issued in the present case.
(h) Learned MM failed to appreciate that it is not the case of the respondent that the petitioner was the signatory of the cheques in question. It is admitted by the respondent that cheques were not signed by the petitioner.
(i) The petitioner was summoned as an accused on the mere filing of a Form 32 by the respondent, where the Learned MM CR No.685/18 Page 5 of 16 Court failed to appreciate that Form 32 is a Form to be filed by the company and a fresh Form 32 should have been filed by the Company on the resignation of the petitioner but the same was not done. It is submitted that the petitioner cannot be made to suffer because of the acts done by the other Director of the Company after he has officially resigned from the company.
(j) Company's Master Data obtained from the Official Website of Ministry of Corporate Affairs (mca.gov.in) also reflects the resignation date of the Petitioner a 15.10.2014, which is the date on which the Form No.DIR11 was filed by the petitioner with ROCDelhi under his digital signature.
5. The respondent has not filed any formal reply but has denied the submissions made in the petition. Learned counsel for respondent has submitted that there is no merit in the present petition and the same deserves to be dismissed.
6. Detailed arguments were advanced by learned counsels for the parties.
7. Learned counsel for petitioner argued that the judgment of Hon'ble Supreme Court in Amit Sibal Vs. Arvind Kejriwal (supra) was in the form of a consent order and Hon'ble Apex Court in that matter did not examine the right of the parties in anyway and neither did it lay down any principle of law on the power of Magistrate to CR No.685/18 Page 6 of 16 discharge/drop proceedings at the stage of Section 251 Cr.P.C. He also argued that the Hon'ble Supreme Court in the case of Municipal Corporation of the Delhi Vs. Gurnam Kaur, (1989) 1 SCC 101 has categorically held that it is axiomatic that when a direction or order is made by consent of the parties, the Court does not adjudicate upon the rights of the parties nor lay down any principle. Quotability as 'law' applies to the principle of a case, its ratio decidendi. The only thing in a Judge's decision binding as an authority upon a subsequent Judge is the principle upon which the case was decided. Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative. Learned counsel for petitioner argued that in the judgment of Hon'ble Supreme Court in Amit Sibal Vs. Arvind Kejriwal (supra), the Hon'ble Apex Court merely recorded the submissions made on part of the petitioner and thereafter proceeded to remit the matter back to the Hon'ble High Court for adjudication on merits, on consent from the counsels appearing on behalf of the respondent. No previous precedents or statutory provisions were analyzed by the Apex Court in the said judgments.
8. Reliance has been placed by the petitioner on the following observations made by Hon'ble High Court of Delhi in the matter of Urrshila Kerkar Vs. Make My Trip India Pvt. Ltd., (supra):
"In any case, the appropriate stage at which these aspects are required to be considered is the stage of framing of Notice under Section 251 of Cr.P.C. Such a view is taken as trial court is not expected to CR No.685/18 Page 7 of 16 mechanically frame Notice under Section 251 of Cr.P.C. and has to apply its mind to find out as to whether a prima facie case is made out or not and in the event of finding that no case is made out for proceeding against a particular accused, trial court would be well within its right to drop the proceedings qua such an accused.
7. On this aspect, pertinent observations of Apex Court in Bhushan Kumar & Anr. Vs. State (NCT of Delhi) & Anr. AIR2012SC1747are as under:"17. It is inherent in Section 251 of the Code that when an accused appears before the trial Court pursuant to summons issued under Section 204 of the Code in a summons trial case, it is the bounden duty of the trial Court to carefully go through the allegations made in the chargesheet or complaint and consider the evidence to come to a conclusion whether or not, commission of any offence is disclosed and if the answer is in the affirmative, the Magistrate shall explain the substance of the accusation to the accusation to the accused and ask him whether he pleads guilty otherwise, he is bound to discharge the accused as per Section 239 of the Code.
8. Further, on this aspect, the dictum of the Apex Court in Krishan Kumar Variar v. Share Shoppe (2010) 12 SCC is as under:"4. In our opinion, in such cases where CR No.685/18 Page 8 of 16 the accused or any other person raises an objection that the trial court has no jurisdiction in the matter, the said person should file an application before the trial court making this averment and giving the relevant facts. Whether a court has jurisdiction to try/entertain a case will, at least in part, depend upon the facts of the case. Hence, instead of rushing to the higher court against the summoning order, the person concerned should approach the trial court with a suitable application for this purpose and the trial court should after hearing both the sides and recording evidence, if necessary, decide the question of jurisdiction before proceeding further with the case.
5. For the reasons stated hereinabove, the impugned judgment and order is set aside and the appeal is allowed. The appellant, if so advised, may approach the trial court with a suitable application in this connection and, if such an application is filed, the trial court shall after hearing both the sides and after recording evidence on the question on jurisdiction, shall decide the question of jurisdiction before further proceeding with the trial.
9. It is no doubt true that Apex Court in Adalat Prasad Vs. Rooplal Jindal and Ors. (2004) 7 SCC338 has ruled CR No.685/18 Page 9 of 16 that there cannot be recalling of summoning order, but seen in the backdrop of decisions of Apex Court in Bhushan Kumar and Krishan Kumar (supra), aforesaid decision cannot be misconstrued to mean that once summoning order has been issued, then trial must follow. If it was to be so, then what is the purpose of hearing accused at the stage of framing Notice under Section 251 of Cr.P.C. In the considered opinion of this Court, Apex Court's decision in Adalat Prasad (supra) cannot possibly be misread to mean that proceedings in a summons complaint case cannot be dropped against an accused at the stage of framing of Notice under Section 251 of Cr.P.C. even if a prima facie case is not made out."
9. It was thus argued on behalf of petitioner that this decision clearly lays down that court is not expected to mechanically frame notice under Section 251 of Cr.P.C. and has to apply its mind to find out as to whether a prima facie case is made out or not and in the event of finding that no case is made out for proceeding against a particular accused, the court would be well within its right to drop the proceedings qua such an accused i.e. the petitioner in the matter in which the impugned order has been passed.
10. Petitioner has also placed reliance on the observations of CR No.685/18 Page 10 of 16 Hon'ble High Court of Delhi in the mater of Rajeev Taneja Vs. NCT of Delhi & Ors. passed in Crl. MC No. 4733/2013 which read as:
"Needless to say that at the time of framing of notice, the court has to see prima facie the averments made in the complaint and the supporting material."
11. It has been argued on behalf of the petitioner that Learned MM failed to appreciate that the petitioner filed the Form No.DIR11, which in itself is a conclusive and unimpeachable proof of resignation of a director from a company, before the date on which both the concerned cheques were issued in the present case and thus he deserved to be discharged.
12. Learned counsel for the respondent has argued that there is no merit in the present petition and the same deserves to be dismissed. He also argued that the reliance of the petitioner on the above quoted judgments is misplaced in the facts of the case.
13. The record of Learned Trial Court has been perused.
14. In the case of Bhushan Kumar & Anr. v. State (NCT of Delhi), criminal appeal no. 613/2012 decided on 04.04.2012 in paragraph 17, Hon'ble Supreme Court observed as under: "It is inherent in section 251 of the code that when an accused appears before the trial Court pursuant to summons issued under section 204 of the Code in a CR No.685/18 Page 11 of 16 summons trial case, it is the bounden duty of the trial court to carefully go through the allegations made in the charge sheet or complaint and consider the evidence to come to a conclusion whether or not, commission of any offence is disclosed and if the answer is in the affirmative, the Magistrate shall explain the substance of the accusation to the accused and ask whether he pleads guilty otherwise, he is bound to discharge the accused as per Section 239 of the Code.".
15. The petitioner has placed reliance on Form No.DIR11 and have submitted that the same in itself is a conclusive and unimpeachable proof of resignation of petitioner from the company and the date of the same is before the date on which both the concerned cheques were issued in the present case and thus he deserved to be discharged. However, the respondent had filed Form 32 with his complaint which reflects the name of the petitioner also as the director of Ras Building Homes even in 2015.
16. The respondent in his complaint filed before learned trial court has specifically submitted that the petitioner herein/accused No.2 and Ravi Kumar, accused No.3 are the directors of the company Ras Building Homes, accused No.1 and they are looking after daytoday affairs of the accused No.1 company.
17. The learned counsel for petitioner has argued that Form 32 is a CR No.685/18 Page 12 of 16 Form to be filed by the company and a fresh Form 32 should have been filed by the Company on the resignation of the petitioner but the same was not done. It has been argued that the petitioner cannot be made to suffer because of the acts done by the other Director of the Company after he has officially resigned from the company. Reliance has been placed by the petitioner on Company's Master Data obtained from the Official Website of Ministry of Corporate Affairs (mca.gov.in) and he has submitted that the same also reflects the resignation date of the Petitioner as 15.10.2014, which is the date on which the Form No.DIR11 was filed by the petitioner with ROCDelhi under his digital signature.
18. However learned counsel for respondent has argued that at the time of framing of notice, the material filed by the complainant along with the complaint is to be looked into to determine whether a prima facie case is made out against the accused persons and not the materials which have been produced by the accused person. He has also argued that he procured the copy of Form 32 of the accused No.1 company from its website and the correctness or falsity of the same can only be determined after due trial and that there is no infirmity in the impugned order.
19. Section 141 of the Negotiable Instruments Act deals with offences by companies and the relevant part provides that:
(1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the CR No.685/18 Page 13 of 16 conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
Proviso of section 141 specifies that nothing contained in this sub section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in subsection (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
20. The petitioner has placed heavy reliance on Form No.DIR11 allegedly submitted by him to the ROC. However, as per Companies Act, 2013, where a director resigns from his office, he shall within a period of thirty days from the date of resignation, forward to the Registrar a copy of his resignation along with reasons for the resignation in Form No.DIR11along with the fee as provided in the Companies (Registration Offices and Fees) Rules, 2014. The petitioner has placed on record a copy of the resignation letter allegedly issued by him to Managing Director of Ras Build Home Pvt.
CR No.685/18 Page 14 of 16Ltd. (accused No.1 company before the learned trial court) without specifying the name of the director and the same has been received by one Ruby. Admittedly there is no Director of the said company by name of Ruby and the notice of resignation is dated 14.09.14, whereas Form No.DIR11 mentioned date of resignation of dated 15.10.14 which is beyond the period of 30 days as required under Companies Act.
21. Further there is a requirement that the reasons should be clearly mentioned in the form for the resignation by the Director. However, the said resignation letter placed on record does not bear any reasons. The form shall be digitally signed by the director itself who has resigned from the office which allegedly has been done by the petitioner in the Form no. DIR11 filed by with ROC. The resignation shall take place from the date on which notice of Resignation is received by the Company or any other date specified by the Director in the notice whichever is later. But the petitioner has not specified any such date in his application for discharge before learned trial court or in the present petition.
22. Further the effective date of resignation shall be the date as entered by the Company in eForm DIR12 for cessation of the Director. The petitioner has not filed any copy of eForm DIR12 to determine the effective date of his resignation nor he has filed copy of the challans/fee payment of DIR No.11 and DIR12. Further the resigning Director is required as per Companies Act to attach CR No.685/18 Page 15 of 16 scanned documents with form DIR No.11 i.e. Notice of Resignation filed with the Company, Proof of Dispatch and Acknowledgement received from Company If any. Thus mere filing of print out of form DIR number 11 does not prove that he was not the director of the Ras Build Home Pvt. Ltd. (accused No.1 company before the learned trial court) on the date of issuance of the cheques in question. Further, it is also to be seen and proved as to whether in a company where there are only two Directors, can one of them resign before any other Director is appointed in the said company.
23. These all are the issues which cannot be decided at the time of framing of charge and thus no case had been made out by the petitioner for his discharge before the learned trial court and learned trial court therefore rightly dismissed his application for discharge.
24. In view of these observations, there is no infirmity in the impugned order and the present petition is accordingly dismissed.
25. A true copy of the order be sent alongwith the TCR to learned trial court. Digitally signed by NEERA NEERA BHARIHOKE
26. Revision file be consigned to record room. BHARIHOKE Date:
2018.10.15 16:28:45 +0530 Announced in the open (DR.NEERA BHARIHOKE) court today i.e. 12.10.18 Addl. Sessions Judge06 SouthEast, Saket Courts, New Delhi CR No.685/18 Page 16 of 16