Delhi District Court
C.R. No. : 34/15 vs Jwala Devi Enterprises Private Ltd on 18 April, 2015
IN THE COURT OF DINESH KUMAR SHARMA, ADDITIONAL SESSIONS
JUDGE, PATIALA HOUSE COURTS, NEW DELHI.
1.
C.R. No. : 34/15
Unique Case ID no. : 02403R0041632015
Title : Naseer Mohammed M.F. AlHajri
S/o Sh. Mohammed M.F. AlHajri
R/o Al Rayyan Al Jadeed,
Bu Sidra, House No. 4,
Doha, Qatar. .... Petitioner
Vs.
Jwala Devi Enterprises Private Ltd.,
Flat No. 427, Sector A6,
Pocket 1, Narela,
Delhi110040. ... Respondent
2.
C.R. No. : 35/15
Unique Case ID no. : 02403R0041622015
Title : Fadi El Jaouni
S/o Sh. Izzat Abdelsalam.
R/o P.O. Box. 3290,
Doha, Qatar. .... Petitioner
Vs.
Jwala Devi Enterprises Private Ltd.,
Flat No. 427, Sector A6,
Pocket 1, Narela,
Delhi110040. ... Respondent
C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15,
43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15,
53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 1 / 53
3.
C.R. No. : 36/15
Unique Case ID no. : 02403R0041642015
Title : Khaled Abdelrahman Radi,
S/o Sh. Abdel Rahman Radi.
R/o P.O. Box No. 25566,
Doha, Qatar. .... Petitioner
Vs.
Jwala Devi Enterprises Private Ltd.,
Flat No. 427, Sector A6,
Pocket 1, Narela,
Delhi110040. ... Respondent
4.
C.R. No. : 37/15
Unique Case ID no. : 02403R0041602015
Title : Naseer Mohammed M.F. AlHajri
S/o Sh. Mohammed M.F. AlHajri
R/o Al Rayyan Al Jadeed,
Bu Sidra, House No. 4,
Doha, Qatar. .... Petitioner
Vs.
Jwala Devi Enterprises Private Ltd.,
Flat No. 427, Sector A6,
Pocket 1, Narela,
Delhi110040. ... Respondent
C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15,
43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15,
53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 2 / 53
5.
C.R. No. : 38/15
Unique Case ID no. : 02403R0041592015
Title : Khaled Abdelrahman Radi,
S/o Sh. Abdel Rahman Radi
R/o P.O. Box No. 25566, Doha, Qatar .... Petitioner
Vs.
Jwala Devi Enterprises Private Ltd.,
Flat No. 427, Sector A6,
Pocket 1, Narela,
Delhi110040. ... Respondent
6.
C.R. No. : 39/15
Unique Case ID no. : 02403R0041612015
Title : Fadi El Jaouni
S/o Sh. Izzat Abdelsalam.
R/o P.O. Box. 3290,
Doha, Qatar. .... Petitioner
Vs.
Jwala Devi Enterprises Private Ltd.,
Flat No. 427, Sector A6,
Pocket 1, Narela,
Delhi110040. ... Respondent
C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15,
43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15,
53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 3 / 53
7.
C.R. No. : 40/15
Unique Case ID no. : 02403R0041482015
Title : Fadi El Jaouni
S/o Sh. Izzat Abdelsalam.
R/o P.O. Box. 3290,
Doha, Qatar. .... Petitioner
Vs.
Anand Prakash Bansal,
Proprietor M/s. Pooja Enterprises
2061/5, Narela Mandi,
Delhi110040. ... Respondent
8.
C.R. No. : 41/15
Unique Case ID no. : 02403R0041492015
Title : Fadi El Jaouni
S/o Sh. Izzat Abdelsalam.
R/o P.O. Box. 3290,
Doha, Qatar. .... Petitioner
Vs.
Anand Prakash Bansal,
Proprietor M/s. Pooja Enterprises
2061/5, Narela Mandi,
Delhi110040. ... Respondent
C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15,
43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15,
53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 4 / 53
9.
C.R. No. : 42/15
Unique Case ID no. : 02403R0041462015
Title : Fadi El Jaouni
S/o Sh. Izzat Abdelsalam.
R/o P.O. Box. 3290,
Doha, Qatar. .... Petitioner
Vs.
Anand Prakash Bansal,
Proprietor M/s. Pooja Enterprises
2061/5, Narela Mandi,
Delhi110040. ... Respondent
10.
C.R. No. : 43/15
Unique Case ID no. : 02403R0041452015
Title : Fadi El Jaouni
S/o Sh. Izzat Abdelsalam.
R/o P.O. Box. 3290,
Doha, Qatar. .... Petitioner
Vs.
Anand Prakash Bansal,
Proprietor M/s. Pooja Enterprises
2061/5, Narela Mandi,
Delhi110040. ... Respondent
C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15,
43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15,
53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 5 / 53
11.
C.R. No. : 44/15
Unique Case ID no. : 02403R0041502015
Title : Fadi El Jaouni
S/o Sh. Izzat Abdelsalam.
R/o P.O. Box. 3290,
Doha, Qatar. .... Petitioner
Vs.
Anand Prakash Bansal,
Proprietor M/s. Pooja Enterprises
2061/5, Narela Mandi,
Delhi110040. ... Respondent
12.
C.R. No. : 45/15
Unique Case ID no. : 02403R0041412015
Title : Naseer Mohammed M.F. AlHajri
S/o Sh. Mohammed M.F. AlHajri
R/o Al Rayyan Al Jadeed,
Bu Sidra, House No. 4,
Doha, Qatar. .... Petitioner
Vs.
Anand Prakash Bansal,
Proprietor M/s. Pooja Enterprises
2061/5, Narela Mandi,
Delhi110040. ... Respondent
C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15,
43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15,
53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 6 / 53
13.
C.R. No. : 46/15
Unique Case ID no. : 02403R0041362015
Title : Naseer Mohammed M.F. AlHajri
S/o Sh. Mohammed M.F. AlHajri
R/o Al Rayyan Al Jadeed,
Bu Sidra, House No. 4,
Doha, Qatar. .... Petitioner
Vs.
Anand Prakash Bansal,
Proprietor M/s. Pooja Enterprises
2061/5, Narela Mandi,
Delhi110040. ... Respondent
14.
C.R. No. : 47/15
Unique Case ID no. : 02403R0041512015
Title : Naseer Mohammed M.F. AlHajri
S/o Sh. Mohammed M.F. AlHajri
R/o Al Rayyan Al Jadeed,
Bu Sidra, House No. 4,
Doha, Qatar. .... Petitioner
Vs.
Anand Prakash Bansal,
Proprietor M/s. Pooja Enterprises
2061/5, Narela Mandi,
Delhi110040. ... Respondent
C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15,
43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15,
53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 7 / 53
15.
C.R. No. : 48/15
Unique Case ID no. : 02403R0041472015
Title : Khaled Abdelrahman Radi,
S/o Sh. Abdel Rahman Radi
R/o P.O. Box No. 25566,
Doha, Qatar .... Petitioner
Vs.
Anand Prakash Bansal,
Proprietor M/s. Pooja Enterprises
2061/5, Narela Mandi,
Delhi110040. ... Respondent
16.
C.R. No. : 49/15
Unique Case ID no. : 02403R0041552015
Title : Khaled Abdelrahman Radi,
S/o Sh. Abdel Rahman Radi
R/o P.O. Box No. 25566, Doha, Qatar .... Petitioner
Vs.
Anand Prakash Bansal,
Proprietor M/s. Pooja Enterprises
2061/5, Narela Mandi,
Delhi110040. ... Respondent
C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15,
43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15,
53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 8 / 53
17.
C.R. No. : 50/15
Unique Case ID no. : 02403R0041542015
Title : Khaled Abdelrahman Radi,
S/o Sh. Abdel Rahman Radi
R/o P.O. Box No. 25566,
Doha, Qatar .... Petitioner
Vs.
Anand Prakash Bansal,
Proprietor M/s. Pooja Enterprises
2061/5, Narela Mandi,
Delhi110040. ... Respondent
18.
C.R. No. : 51/15
Unique Case ID no. : 02403R0041562015
Title : Khaled Abdelrahman Radi,
S/o Sh. Abdel Rahman Radi
R/o P.O. Box No. 25566, Doha, Qatar .... Petitioner
Vs.
Anand Prakash Bansal,
Proprietor M/s. Pooja Enterprises
2061/5, Narela Mandi,
Delhi110040. ... Respondent
C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15,
43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15,
53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 9 / 53
19.
C.R. No. : 52/15
Unique Case ID no. : 02403R0041572015
Title : Khaled Abdelrahman Radi,
S/o Sh. Abdel Rahman Radi
R/o P.O. Box No. 25566, Doha, Qatar .... Petitioner
Vs.
Anand Prakash Bansal,
Proprietor M/s. Pooja Enterprises
2061/5, Narela Mandi,
Delhi110040. ... Respondent
20.
C.R. No. : 53/15
Unique Case ID no. : 02403R0041582015
Title : Khaled Abdelrahman Radi,
S/o Sh. Abdel Rahman Radi
R/o P.O. Box No. 25566, Doha, Qatar .... Petitioner
Vs.
Anand Prakash Bansal,
Proprietor M/s. Pooja Enterprises
2061/5, Narela Mandi,
Delhi110040. ... Respondent
C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15,
43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15,
53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 10 / 53
21.
C.R. No. : 54/15
Unique Case ID no. : 02403R0041532015
Title : Khaled Abdelrahman Radi,
S/o Sh. Abdel Rahman Radi
R/o P.O. Box No. 25566,
Doha, Qatar .... Petitioner
Vs.
Anand Prakash Bansal,
Proprietor M/s. Pooja Enterprises
2061/5, Narela Mandi,
Delhi110040. ... Respondent
22.
C.R. No. : 55/15
Unique Case ID no. : 02403R0041432015
Title : Fadi El Jaouni
S/o Sh. Izzat Abdelsalam.
R/o P.O. Box. 3290,
Doha, Qatar. .... Petitioner
Vs.
Anand Prakash Bansal,
Proprietor M/s. Pooja Enterprises
2061/5, Narela Mandi,
Delhi110040. ... Respondent
C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15,
43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15,
53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 11 / 53
23.
C.R. No. : 56/15
Unique Case ID no. : 02403R0041442015
Title : Fadi El Jaouni
S/o Sh. Izzat Abdelsalam.
R/o P.O. Box. 3290,
Doha, Qatar. .... Petitioner
Vs.
Anand Prakash Bansal,
Proprietor M/s. Pooja Enterprises
2061/5, Narela Mandi,
Delhi110040. ... Respondent
24.
C.R. No. : 57/15
Unique Case ID no. : 02403R0041402015
Title : Naseer Mohammed M.F. AlHajri
S/o Sh. Mohammed M.F. AlHajri
R/o Al Rayyan Al Jadeed,
Bu Sidra, House No. 4,
Doha, Qatar. .... Petitioner
Vs.
Anand Prakash Bansal,
Proprietor M/s. Pooja Enterprises
2061/5, Narela Mandi,
Delhi110040. ... Respondent
C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15,
43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15,
53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 12 / 53
25.
C.R. No. : 58/15
Unique Case ID no. : 02403R0041372015
Title : Naseer Mohammed M.F. AlHajri
S/o Sh. Mohammed M.F. AlHajri
R/o Al Rayyan Al Jadeed,
Bu Sidra, House No. 4,
Doha, Qatar. .... Petitioner
Vs.
Anand Prakash Bansal,
Proprietor M/s. Pooja Enterprises
2061/5, Narela Mandi,
Delhi110040. ... Respondent
26.
C.R. No. : 59/15
Unique Case ID no. : 02403R0041522015
Title : Naseer Mohammed M.F. AlHajri
S/o Sh. Mohammed M.F. AlHajri
R/o Al Rayyan Al Jadeed,
Bu Sidra, House No. 4,
Doha, Qatar. .... Petitioner
Vs.
Anand Prakash Bansal,
Proprietor M/s. Pooja Enterprises
2061/5, Narela Mandi,
Delhi110040. ... Respondent
C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15,
43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15,
53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 13 / 53
27.
C.R. No. : 60/15
Unique Case ID no. : 02403R0041392015
Title : Naseer Mohammed M.F. AlHajri
S/o Sh. Mohammed M.F. AlHajri
R/o Al Rayyan Al Jadeed,
Bu Sidra, House No. 4,
Doha, Qatar. .... Petitioner
Vs.
Anand Prakash Bansal,
Proprietor M/s. Pooja Enterprises
2061/5, Narela Mandi,
Delhi110040. ... Respondent
28.
C.R. No. : 61/15
Unique Case ID no. : 02403R0041382015
Title : Naseer Mohammed M.F. AlHajri
S/o Sh. Mohammed M.F. AlHajri
R/o Al Rayyan Al Jadeed,
Bu Sidra, House No. 4,
Doha, Qatar. .... Petitioner
Vs.
Anand Prakash Bansal,
Proprietor M/s. Pooja Enterprises
2061/5, Narela Mandi,
Delhi110040. ... Respondent
C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15,
43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15,
53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 14 / 53
29.
C.R. No. : 62/15
Unique Case ID no. : 02403R0041422015
Title : Naseer Mohammed M.F. AlHajri
S/o Sh. Mohammed M.F. AlHajri
R/o Al Rayyan Al Jadeed,
Bu Sidra, House No. 4,
Doha, Qatar. .... Petitioner
Vs.
Anand Prakash Bansal,
Proprietor M/s. Pooja Enterprises
2061/5, Narela Mandi,
Delhi110040. ... Respondent
Date of Institution : 04.3.2015
Date of final argument : 08.4.2015
Date of pronouncement of order : 18.4.2015
(Appearances)
Sh. J.K. Das, Ld. Senior Counsel alongwith Sh. Sandeep Das,
Ms. Tine Abraham, Sh. Raghav Gupta and Ms. Varuna Bhanrale, Ld. Counsels for
the petitioner.
Sh. Rajiv Aggarwal and Sh. Asit Tiwari, Ld. Counsels for the respondent.
ORDER
1. Vide this order, I propose to dispose of twenty nine revision petitions assailing the impugned order dated 19.9.2014, 20.9.2014 and C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15, 43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15, 53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 15 / 53 22.9.2014 whereby Ld. Metropolitan Magistrate, Patiala House Courts, New Delhi inter alia held that the offence under Section 138 Negotiable Instruments Act is made out against the petitioners. Ld. Metropolitan Magistrate took cognizance of the offence under Section 138 Negotiable Instruments Act and issued summons to the accused persons including the present petitioner.
2. This order would dispose of twenty nine revision petitions bearing no CRs No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15, 43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15, 53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Out of these twenty nine revision petitions, nine revision petitions have been filed by Sh. Fadi El Jaouni and by Sh. Khaled Abdelrahman Radi each and the remaining eleven revision petitions have been filed by Sh. Nasser Mohammad M.F. AlHajri.
3. Trial Court Record would indicate that Sh. Anand Prakash Bansal and M/s. Jwala Devi Enterprises Private Ltd. through its authorized representative Sh. Satya Prakash Bansal, filed 11 complaint cases bearing CC NO. 814/1/2014, 799/1/2014, 842/1/2014, 812/1/2014, 839/1/2014, 815/1/2014, 800/1/2014, 840/1/2014, 802/1/2014, 841/1/2014 and 813/1/2014 against M/s. Bush Food Overseas Pvt. Ltd. and others. In 9 of such complainant cases, petitioners Fadi El Jaoni, Khaled Abdelrahman Radi and Nasser Mohammad M.F. AlHajri have been impugned as respondent C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15, 43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15, 53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 16 / 53 no. 4, 5 and 6. However, in 2 complaint cases bearing CC No. 840/1/2014 and CC No. 813/1/2014, only Mr. Naseer Mohammad M.G. AlHajri has been arrayed as respondent no. 4. However, the facts alleged in all the cases admittedly are identical in nature and the pleadings in all the 11 complainant cases are verbatim.
4. Briefly stated the facts are that complainant entered into commercial transaction with M/s. Bush Food Overseas Pvt. Ltd. (hereinafter referred as accused company). Mr. Virkaran Awasty is the Managing Director of the company and Mr. Vinod Sirohi, Mr. Fadi AlJaouni, Mr. Khaled Abdelrahman Radi and Sh. Naseer Mohammad M.F. Al Hajri are the directors of the accused company and accused Dhiraj Kumar Sachdeva is the Company Secretary. The case of the complainant is that Mr. Virkaran Awasty and Mr. Vinod Sirohi signed and issued certain cheques to the complainant in discharge of debt and liability. However, the said cheque on being presented were dishonoured with the remarks "Exceeding Arrangements". The complainant, thereafter, sent a legal notice upon the accused persons in accordance with the provisions of Negotiable Instruments Act. However, the accused persons failed/ refused/ neglected to make the payment despite receipt of the legal notice within the stipulated period and therefore, the complaints under Section 138 r/w Section 141 and 142 Negotiable Instruments Act were filed. Upon complaint being filed, Ld. Metropolitan Magistrate vide separate summoning orders, C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15, 43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15, 53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 17 / 53 however verbatim, took the cognizance under Section 138 of Negotiable Instruments Act on the very first date i.e. 19.9.2014, 20.9.2014 and 22.9.2014 and summoned the accused persons including the present petitioners under Section 138 Negotiable Instruments Act. The petitioners have invoked the revisional jurisdiction under Section 397 r/w 399 of Code of Criminal Procedure and challenged the impugned order on the ground that it's illegal, incorrect and improper and therefore, liable to be set aside. The petitioners stated that they are law abiding citizen of Egypt and the resident of Qatar and presently working with M/s/ Hassad Food Company QSC in Qatar. The accused persons have not disputed the issuance of cheque, its dishonour and service of legal notice. M/s. Bush Food Overseas Pvt. Ltd. was incorporated in 2005 by Mr. Virkaran Awasty along with his wife Ms. Ritika Awasty. On 28.3.2013, M/s. Hassad Netherlands B.V., wholly owned subsidiary of M/s. Hassad Food Company QSC invested an aggregate amount of US$ 120,354,728 (approximately Rs.750 Crores) in accused Company. The petitioners in the present case were appointed as "Non Executive Director" of accused company. The plea of the petitioners is that they presently do not hold any share in A1 company nor are they involved in dealings of the company. It is also pertinent to mention here that M/s. Hassad Netherlands B.V. has also lodged a complaint in Economic Offences Wing, P.S. Mandir Marg, New Delhi in January, 2014 against accused copany on discovery of irregularities in the C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15, 43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15, 53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 18 / 53 affairs of the company, pursuant to which FIR has already been lodged for the offences of conspiracy, cheating and misappropriation against Mr. Virkaran Awasty and Mr. Vinod Sirohi. The plea of the petitioners is that they resigned as Non Executive Director of the Company in September, 2014. The petitioners have challenged the impugned order in their revision petition on the following grounds: "a. the impugned order has been passed in a mechanical manner, without even recording satisfaction with respect to applicable statutory provisions (Section 141 and 142 of Negotiable Instruments Act, 1881 and the averments in the complaint based on which process has been issued against the petitioner) b. it is ex facie evident from the impugned order that the Ld. Metropolitan Magistrate has failed to scrutinize the contents of the complaint to determine if there was any allegation against the petitioner;
c. it is ex facie evidence from the impugned order that the Ld. Metropolitan Magistrate has failed to scrutinize the contents of the Form 32 with respect to the Petitioner's appointment and resignation as a Director, in as much as it is evident from the said form that the petitioner was a non executive director and could not, therefore, be said to be in charge of and responsible for the business and affairs of the accused no. 1 company;
d. the complainant has failed to make out any case against the petitioner as the complaint merely contains bald and unsubstantiated averments against the petitioner, which are mechanical repetitions of the provisions of the statue;
C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15, 43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15, 53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 19 / 53 e. the petitioner, being a nonexecutive Director, was not responsible for or in charge of the day to day affairs of accused no. 1 company and cannot be made vicariously liable under Section 138 read with 141 of the NI Act;
f. there are no specific averments against the petitioner in the complaint with respect to an offence punishable under Section 138 read with 141 of the NI Act;
g. the Ld. Metropolitan Magistrate has failed to carry out the mandatory inquiry under Section 202 of the Cr.P.C since the petitioner is admittedly residing outside the jurisdiction of the Magistrate which is also evident from Form 32; the petitioner, at all material items, has been residing in Qatar;
h. the Ld. Metropolitan Magistrate has also failed to consider that the complainant has failed to demonstrate the petitioner's involvement in the transaction between the accused no. 1 company and the complainant which admittedly took place in India;
i. The Ld. Metropolitan Magistrate has also failed to consider that the complainant has failed to demonstrate his right to initiate proceedings under Section 138 of the NI Act when the dishonored cheques were issued in favour of a proprietary concern;
j. the Ld. Metropolitan Magistrate has failed to appreciate that the complainant has not complied with the guidelines laid down by the Hon'ble High Court of Delhi in Sudeep Jain Vs. ECE Industries, 201 (2013) DLT 461 in as much as the complainant has not set out specific averments qua each accused person in the mandatory table and he also failed to provide accurate details of the person/company in whose favour the cheques were issued;
and
k. the complainant is clearly malafide and filed
C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15, 43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15, 53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 20 / 53 with oblique motives, as is evident from the statements made by the complainant which are contrary to unimpeachable public documents."
5. Before proceeding further, it is pertinent to note that in the complaint filed by the complainant, primarily the allegations against the petitioner are made in following paras of the complaint which are reproduced herein as ready reckoner: "That the, Accused no. 4 Fadi El Jaouni, Accused no. 5 Khaled Abdelrahman Radi and the Accused no. 6 Mr. Naseer Mohammad M.F. Al Hajri are the Directors and Accused no. 3 Mr. Vinod Sirohi is Director and Authorized Signatory of the Accused No. 1 Company, namely M/s. Bush Food Pvt. Ltd. and are actively engaged and responsible for and in charge of daytoday management, business activities and affairs of the Accused no. 1 firm.
That despite the receipt of the above said legal notice dated 05.02.2014, the accused persons have failed/ refused/ neglected to make the payment of the above said cheques amount to the complainant and have, therefore, made themselves liable to be prosecuted under the provisions of Section 138, 141 and 142 of the Negotiable Instruments Act, 1881. It is further submitted that at the time of issuance of the said cheques, the accused persons have assured, promised and represented to the complainant that the said cheques would be honoured on presentation.
However, the said cheques, which are the subject matter of the present complaint were dishonoured on C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15, 43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15, 53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 21 / 53 presentment. The accused persons have no intention to make the said payment to the complainant. It is submitted that the accused persons have been responsible for all the business dealings for and on behalf of their said accused no. 1 company and also responsible for the circumstances that have led to the dishonour of the said cheques issued by the complainant."
6. It is also relevant to note here that admittedly the petitioners are "Nonexecutive Director" of the accused company and not signatory of the cheques in question. The Ld. Counsel for the complainant has also not disputed the factum of subsequent resignation of the petitioners from the accused copany.
7. Sh. J. K. Dass, Ld. Senior Counsel along with Sh. Sandeep Dass, Sh. Raghav Gupta and Sh. Tine Abrahm, has argued at length that the summoning order passed by Ld. Metropolitan Magistrate is liable to set aside as the same is in violation of the settled law laid down by the Apex Court in the various judgments from time to time. Ld. Senior Counsel submitted that the bare perusal of the impugned order would indicate that Ld. Trial Court has passed the order mechanically on the very first date of hearing even without going through the complaint and ignoring the fact that there are no specific averments against the petitioner. It has been submitted that in criminal law, vicarious liability cannot be imposed unless and until the law provides the same. Section 138 of Negotiable Instruments C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15, 43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15, 53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 22 / 53 Act makes only the person who has issued the cheque liable, in case the cheque is dishonoured. Section 141 of Negotiable Instruments Act comes into play when the offence has been committed by the company. Ld. Senior Counsel reemphasized the wording of Section 141 of Negotiable Instruments Act and the same is reproduced herein below: "Offences by companies(1) If the person committing an offence under Section 138 in a company, every person who, at the time of offence was committed, was in charge of, and was responsible to the company for the 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:
Provided 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:
Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter.
(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 C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15, 43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15, 53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 23 / 53 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."
8. Ld. Senior Counsel has specifically relied upon following judgments along with number of other judgments:
1. Anita Malhotra vs. Apparel Export Promotion Council AIR 2012 SC 31,
2. SMS Pharmaceuticals Ltd. vs. Neeta Bhalla (2005) 8 SCC 89, and
3. GHCL Employees Stock Option Trust vs. India Infoline Ltd.
(2013) 4 SCC 505.
Ld. Senior Counsel took the court to specific paragraphs of the said judgments to buttress his point that the director of a company cannot be summoned mechanically. The directors can be summoned only if there are specific averments of the fact that they have been involved in the day to day affairs of the company. It has been submitted that the role of the petitioners have not been described by the complainant in any manner. It has further been submitted that the Ld. Metropolitan Magistrate has also not followed the mandate laid down by Hon'ble High Court in Sudeep Jain vs. ECE Industries 111 (2013) BC 589. Sh. J.K. Das, Ld. Senior Counsel C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15, 43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15, 53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 24 / 53 submitted that Ld. Metropolitan Magistrate has also committed grave illegality by not following the mandate of Section 202 Cr.P.C., as the Section 202 Cr.P.C. provides that in a case where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, the summoning of process shall be postponed and the Ld. Metropolitan Magistrate shall either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. Ld. Senior Counsel submitted that the purpose of this safeguard is to protect the innocent persons from harassment by unscrupulous persons. It was further submitted that such inquiry or investigation is mandatory before summons are issued against the accused living beyond the territorial jurisdiction of the Magistrate. Reliance has been placed upon Vijay Dhanuka etc. vs. Najima Mamtaj etc. 2014 (5) SCJ
507.
9. The complainant has relied upon as many as 26 judgments in support of his case and placed on record a compilation of the same. However, the best of judgments have been mentioned herein above and this court do not want to burden this order further by mentioning all the judgments relied upon by the petitioner. The petitioner has also filed written submissions reiterating the averments made in the complaint and reproducing the relevant portions of the important judgments as stated C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15, 43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15, 53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 25 / 53 above.
10. Sh. Rajiv Aggarwal, Ld. Counsel for the respondent defended the order and submitted that Ld. Metropolitan Magistrate has passed a well reasoned order after taking into account entire facts and circumstances. It has been submitted that the petitioners, who had invested the substantial amount of money, were actually controlling the affairs of the company. It was submitted that in this case the petitioners came into the picture in March, 2013 and the present cheques were issued during the period from September, 2013 to November, 2013. It has further been submitted that simply because the petitioners/ respondents are residents of Qatar, would not mean that they cannot engage in day to day management and business activities of the company. Sh. Aggarwal, Ld. Counsel for the respondent submitted that in the present era, wherein latest communication tools are being used, a person sitting any where in the world can control the affairs at any place on the earth. Ld. Counsel submitted that the complainant, in his complaint, has specifically averred that the petitioners were actively engaged and responsible for and incharge of day to day management, business activities and affairs of the company and also responsible for the circumstances which have led to said dishonour of cheques. Ld. Counsel submitted that in fact the complainant company had supplied rice only on the representation and assurance of the petitioners that prompt payment shall be made against supply of goods.
C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15, 43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15, 53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 26 / 53
11. Ld. Counsel for the complainants has not disputed that the petitioners are Non Executive Directors of accused Company. However, it has been submitted that M/s. Hassad Netherland B.V. had invested Rs.750 Crores in the accused company to protect and safeguard the investments made. The petitioners were appointed as directors in the Board of Directors and were responsible for running and managing the affairs, finances, dealings and transactions of the accused company. Ld. Counsel submitted that in para 3 and 10 of the complaint, it has specifically been averred that the petitioners are actively engaged and responsible for and in charge of day to day management, business activities and affairs of the accused company and also for the circumstances which have led to the said dishonour of cheque. The cheques in question were issued after the petitioners were appointed as director. It has been submitted that the petitioners have deliberately mentioned their designation as "Nonexecutive Directors" only to avoid liability. The complainant/ respondent has not disputed about the dispute between the accused company and M/s. Hassad Netherlands B.V. Ld. Counsel has relied upon latest judgment of Hon'ble Supreme Court in Gunmala Sales Pvt. Ltd. vs. Anu Mehta and others 2015 Cr.L.J. 285 in which inter alia it has been held that "Once in a complaint filed under Section 138 r/w Section 141 of the Negotiable Instruments Act, the basic averment is made that the Director was in charge of and responsible for the conduct of the business of the company C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15, 43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15, 53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 27 / 53 at the relevant time when the offence was committed, the Magistrate can issue process against such Director."
Reliance is also placed upon K.K. Ahuja vs. V.K. Arora and another AIR 2011 SC 2259 and N. Rangachari vs. Bharat Sanchar Nigam Ltd. (2007) 5 SCC 108.
12. The respondent/ complainant has also invoked the doctrine of Indoor Management and submitted that the complainant to whom a cheque is issued by a company may not be aware of the functions performed by a particular director in the company. The responsibility of each of the Directors is exclusively the internal management of the company itself. It has further been submitted that mere mentioning of Non Executive in Form 32 cannot protect any director qua its responsibilities towards company unless the said Director by documents of unimpeachable nature shows that he or she has not taken part in affairs or any decision of the company Raj Travels dealings. Ld. Counsel has also placed reliance upon Shree and Tours Ltd. vs. Destination of the World (Subcontinent) Pvt. Ltd. reported at 66 Comp. Case 26 (Delhi) in which it was inter alia held that "Internal management of the company, within special knowledge of the directors, has to be brought to the knowledge of the court by the Board of Directors or Directors and then is to prove before the court. An C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15, 43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15, 53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 28 / 53 outsider would only know as to who are the directors, who is the managing director and he knows that the management of the company is run by Board of Director and Managing Director.
It can never be in the knowledge of an outsider what different resolutions were passed by the Board of Directors of a company delegating powers, who were the persons to whom the powers were delegated, what powers were delegated and who has to manage what. I, therefore, consider that benefit of Section 141 of not facing the prosecution because of having no responsibility of managing the business of the company can only be availed after disclosing the court and proving before the court that the particular director was not the one, who was involved for conducting the business of the company."
13. It has further been submitted that the complaint and material C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15, 43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15, 53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 29 / 53 on record disclose the issues regarding the role and responsibility of the petitioners in the management and affairs of the accused company. Ld. Counsel submitted that the resignation of the petitioners from the post of director would not make any difference in the present case, as the resignation has been given only after the offence had been committed under Section 138 of Negotiable Instruments Act. The complainant/ respondent submitted that directions of the Hon'ble High Court of Delhi in Sudeep Jain vs. ECE Industries reported at 201 (2013) DLT 461 has duly been followed.
14. In respect of compliance of Section 202 Cr.P.C. Ld. Counsel submitted that Ld. Metropolitan Magistrate has rightly issued the summons after examining the complainant by way of affidavit and after going through the entire documents filed by the complainant and therefore, the contentions of the petitioners in this regard are not maintainable. Ld. Counsel has placed reliance upon Abhishek Agarwalla vs. Boortmalt NV & another 2011 (122) DRJ 421.
FINDING:
15. The law regarding liabilitiy of director has come up for deliberation before the Apex Court in number of cases. The latest in the series of these judgments cited by Ld. Counsel for respondent/ complainant C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15, 43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15, 53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 30 / 53 is M/s. Gunmala Sales Pvt. Ltd. Vs. Anu Mehta and others 2015 CRL. L.J. 285 (twoJudge Bench). In the said judgment, almost all the previous judgments on this point including the threeJudges Bench judgment in M/s. SMS Pharmaceuticlas Pvt. Ltd. Vs. Neeta Bhalla (2005) 8 SCC 89 has been discussed in detail. It is pertinent to note here that the appellant in this case were the complainant who had invoked the special jurisdiction of Hon'ble Supreme Court after Hon'ble High Court had quashed the proceedings initiated by the magistrate on the ground that there was merely a bald assertion in the complaint filed under Section 138 r/w 141 of Negotiable Instruments Act, 1881 (the NI Act) that the directors were, at the time when the offence was committed, incharge of and responsible for the conduct and day to day affairs of the accused company and this bald assertion was not sufficient to maintain the present complaint. It is relevant to note here that in the said case, the appellant/ complainant had also relied upon N. Rangachari Vs. Bharat Sanchar Nigam Ltd. (Supra) and also invoked the doctrine of indoor management. In Gunmala Sales Pvt. Ltd. (Supra) Hon'ble Supreme Court refered to SMS Pharma - (I) which is the decision of threeJudge Bench of the Hon'ble Supreme Court and specifically mentioned that all subsequent decisions are of twoJudge Bench. It is relevant to note that the threeJudge Bench in SMS Pharma I was dealing with the reference made by a twoJudge Bench for determination of the following questions:
C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15, 43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15, 53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 31 / 53 "(a) Whether for purposes of Section 141 of the Negotiable Instruments Act,1881, it is sufficient if the substance of the allegation read as a whole fulfill the requirements of the said section and it is not necessary to specifically state in the complaint that the person accused was in charge of, or responsible for, the conduct of the business of the company.
(b) Whether a director of a company would be deemed to be in charge of, and responsible to, the company for conduct of the business of the company and, therefore, deemed to be guilty of the offence unless he proves to the contrary.
(c) Even if it is held that specific averments are necessary, whether in the absence of such averments the signatory of the cheque and or the managing directors or joint managing director who admittedly would be in charge of the company and responsible to the company for conduct of its business could be proceeded against."
16. In the said judgment i.e. in SMS Pharma- (I), after considering Sections 138 and 141 of the NI Act, and Sections 203 and 204 Cr.P.C. Hon'ble Supreme Court answered the question posed in the reference as under : ("a) It is necessary to specifically aver in a complaint under Section 141that at the time the offence was committed, the person accused was incharge of, and responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 and has to be made in a complaint. Without this C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15, 43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15, 53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 32 / 53 averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied.
(b) The answer to the question posed in subpara (b) has to be in the negative. Merely being a director of a company is not sufficient to make the person liable under Section 141 of the Act. A director in a company cannot be deemed to be in charge of and responsible to the company for the conduct of its business. The requirement of Section 141 is that the person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a director in such cases.
(c) The answer to Question (c) has to be in the
affirmative. The question notes that the managing
director or joint managing director would be
admittedly in charge of the company and responsible to the company for the conduct of its business. When that is so, holders of such positions in a company become liable under Section 141 of the Act. By virtue of the office they hold as managing director or joint managing director, these persons are in charge of and responsible for the conduct of business of the company. Therefore, they get covered under Section
141. So far as the signatory of a cheque which is dishonoured is concerned, he is clearly responsible for the incriminating act and will be covered under sub section (2) of Section 141."
C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15, 43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15, 53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 33 / 53
17. Proceeding further, in Saroj Kumar Poddar vs. State (NCT of Delhi) and another AIR 2007 3 SC 912, the Hon'ble Supreme Court relied upon SMS Pharma (I), and reemphasized that in absence of averment in the complaint as to how and in what manner, the appellant was responsible for the conduct of the business of the company or otherwise responsible to it in regard to its functioning, cannot be held responsible for dishounour of a cheque. (emphasis supplied) It was specifically held that to make a director of the company vicariously liable for the acts of the company, it was obligatory on the part of the complainant to make specific allegations as are required in law. (emphasis supplied)
18. It is advantageous to note that in N.K. Wahi's case AIR 2007 SC 1454 it was again reiterated by the Hon'ble Supreme Court that there must be a specific allegation in the complaint as to the part played by director in the transaction and there should be clear and unambiguous allegation as to how the Directors are incharge and responsible for the conduct of the business of the company. (emphasis supplied)
19. It is also pertinent to mention here that in N. Rangachari in which the doctrine of indoor management, was discussed, the Hon'ble Supreme Court inter alia held that the decision of the threeJudge Bench in SMS Pharma (I) was binding on it. It is important to note that N. Rangachari was twoJudge Bench decision.
20. In Paresh P. Rajda vs. State of Maharashtra and Another C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15, 43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15, 53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 34 / 53 AIR 2008 SC 2357 Hon'ble Supreme Court after referring to SMS Pharma (I) and N. Rangachari, inter alia noted a slight departure in N. Rangachari in favour of the complainant from the view taken in SMS Pharma (I) and further noted that ultimately the entire matter would boil down to an examination of the nature of averments made in complaint. In Gunmala Sales Pvt. Ltd. case (Supra) Hon'ble Supreme Court placed reliance upon K.K. Ahuja vs. V.K. Arora and another (supra) wherein after referring to SMS Pharma (I), SMS Pharma (II), Saroj Kumar Poddar and N.K. Wahi and other relevant judgments and to the relevant provisions of the Companies Act, summarized the position of Section 141 of Negotiable Instruments Act as under : "(i) If the accused is the Managing Director or a Joint Managing Director, it is not necessary to make an averment in the complaint that he is in charge of, and is responsible to the company, for the conduct of the business of the company. It is sufficient if an averment is made that the accused was the Managing Director or Joint Managing Director at the relevant time. This is because the prefix "Managing" to the word "Director"
makes it clear that they were in charge of and are
responsible to the company, for the conduct of the
business of the company.
(ii) In the case of a Director or an officer of the company who signed the cheque on behalf of the company, there is no need to make a specific averment that he was in charge of and was responsible to the company, for the C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15, 43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15, 53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 35 / 53 conduct of the business of the company or make any specific allegation about consent, connivance or negligence. The very fact that the dishonoured cheque was signed by him on behalf of the company, would give rise to responsibility under subsection (2) of Section 141.
(iii) In the case of a Director, secretary or manager [as defined in Section 2(24) of the Companies Act] or a person referred to in clauses (e) and (f) of Section 5 of the Companies Act, an averment in the complaint that he was in charge of, and was responsible to the company, for the conduct of the business of the company is necessary to bring the case under Section 141(1) of the Act. No further averment would be necessary in the complaint, though some particulars will be desirable. They can also be made liable under Section 141(2) by making necessary averments relating to consent and connivance or negligence, in the complaint, to bring the matter under that subsection.
(iv) Other officers of a company cannot be made liable under subsection (1) of Section 141. Other officers of a company can be made liable only under subsection (2) of Section 141, by averring in the complaint their position and duties in the company and their role in regard to the issue and dishonour of the cheque, disclosing consent, connivance or negligence."
21. In National Small Industries Corporation Limited AIR 2010 SC (Supp) 569, Hon'ble Supreme Court again relied upon all the C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15, 43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15, 53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 36 / 53 judgments referred hereinabove and in particular, referring to K.K. Ahuja (supra) laid down the following principles :
(i) The primary responsibility is on the complainant to make specific averments as are required under the law in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no presumption that every Director knows about the transaction.
(ii) Section 141 does not make all the Directors liable for the offence. The criminal liability can be fastened only on those who, at the time of the commission of the offence, were in charge of and were responsible for the conduct of the business of the company.
(iii) Vicarious liability can be inferred against a
company registered or incorporated under the
Companies Act, 1956 only if the requisite
statements, which are required to be averred in
the complaint/petition, are made so as to make the accused therein vicariously liable for offence committed by the company along with averments in the petition containing that accused were incharge of and responsible for the business of the company and by virtue of their position they are liable to be proceeded with.
(iv) Vicarious liability on the part of a person must be pleaded and proved and not inferred.
(v) If accused is a Managing Director or a Joint C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15, 43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15, 53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 37 / 53 Managing Director then it is not necessary to make specific averment in the complaint and by virtue of their position they are liable to be proceeded with.
(vi) If the accused is a Director or an Officer of a company who signed the cheques on behalf of the company then also it is not necessary to make specific averment in complaint.
(vii) The person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a Director in such cases."
22. In Gunmala Sales Pvt. Ltd. case (Supra), the case of Anita Malhotra's case (Supra) relied upon by the petitioner, was also cited. In Anita Malhotra's case (Supra), the petitioner claimed herself to be a Non Executive Director. She had challenged her summoning on the twin grounds i.e. She being Non Executive Director, cannot have been summoned as well she had resigned from the Company on 20.11.1998 while the cheques were issued in the year 2004. Hon'ble High Court dismissed her petition for quashing of the complaint. Aggrieved of which the petitioner approached the Hon'ble Supreme Court. Hon'ble Supreme Court while setting aside the Hon'ble High Court's order, reiterated that in case of a director, the complainant should specifically spell out how and in C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15, 43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15, 53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 38 / 53 what manner the Director was in charge of or was responsible to the company for conduct of its business and mere bald statement that he or she was in charge of an was responsible to the company for conduct of its business is not sufficient (emphasis supplied). Hon'ble Supreme Court was pleased to observe that in case before it except the mere bald and cursory statement with regard to the appellant, the complainant had not specified her role in day to day affairs of the company and on this ground alone, the appellant was entitled to succeed.
23. It is relevant to note that in Gunmala Sales Pvt. Ltd. case (Supra) Hon'ble Supreme Court inter alia held as under: "26. It is clear from a perusal of the above decisions that SMS Pharma (1), which is a threeJudge Bench decision, still holds the field. In all subsequent decisions, twoJudge Benches of this Court have followed SMS Pharma(1). No doubt that there is a slight deviation in N. Rangachari in favour of the complainant, but, even in that decision, the twoJudge Bench accepts that SMS Pharma(1) has a binding force. In SMS Pharma(1), KK Ahuja and National Small Industries Ltd. this Court summarized its conclusions. We are concerned in this case with Directors who are not signatories to the cheques. So far as Directors who are not signatories to the cheques or who are not Managing Directors or Joint Managing Directors are concerned, it is clear from the conclusions drawn in the abovementioned cases that it is necessary to aver in the complaint filed under Section 138 read with Section 141 of the NI Act that at the relevant time when the offence was committed, the Directors were in charge of and were responsible for the conduct of the business of the company. This is a basic requirement. There is no C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15, 43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15, 53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 39 / 53 deemed liability of such Directors. (emphasis supplied)
27. This averment assumes importance because it is the basic and essential averment which persuades the Magistrate to issue process against the Director. That is why this Court in SMS Pharma(1) observed that the question of requirement of averments in a complaint has to be considered on the basis of provisions contained in Sections 138 and 141 of the NI Act read in the light of the powers of a Magistrate referred to in Sections 200 to 204 of the Code which recognize the Magistrate's discretion to reject the complaint at the threshold if he finds that there is no sufficient ground for proceeding. Thus, if this basic averment is missing the Magistrate is legally justified in not issuing process. But here we are concerned with the question as to what should be the approach of a High Court when it is dealing with a petition filed under Section 482 of the Code for quashing such a complaint against a Director. If this averment is there, must the High Court dismiss the petition as a rule observing that the trial must go on? Is the High Court precluded from looking into other circumstances if any? Inherent power under Section 482 of the Code is to be invoked to prevent abuse of the process of any court or otherwise to secure ends of justice. Can such fetters be put on the High Court's inherent powers? We do not think so."
24. Hon'ble Supreme Court, dwelling on the jurisdiction under Section 482 of Cr.P.C., summarized their conclusions as follows: "a) Once in a complaint filed under Section 138 read with Section 141 of the NI Act the basic averment is made that the Director was in charge of and responsible for the conduct of the business of the company at the relevant time when the offence was C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15, 43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15, 53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 40 / 53 committed, the Magistrate can issue process against such Director;
b) If a petition is filed under Section 482 of the Code for quashing of such a complaint by the Director, the High Court may, in the facts of a particular case, on an overall reading of the complaint, refuse to quash the complaint because the complaint contains the basic averment which is sufficient to make out a case against the Director.
c) In the facts of a given case, on an overall reading of
the complaint, the High Court may, despite the
presence of the basic averment, quash the complaint because of the absence of more particulars about role of the Director in the complaint. It may do so having come across some unimpeachable, uncontrovertible evidence which is beyond suspicion or doubt or totally acceptable circumstances which may clearly indicate that the Director could not have been concerned with the issuance of cheques and asking him to stand the trial would be abuse of the process of the court. Despite the presence of basic averment, it may come to a conclusion that no case is made out against the Director. Take for instance a case of a Director suffering from a terminal illness who was bedridden at the relevant time or a Director who had resigned long before issuance of cheques. In such cases, if the High Court is convinced that prosecuting such a Director is merely an armtwisting tactics, the High Court may quash the proceedings. It bears repetition to state that to establish such case unimpeachable, uncontrovertible evidence which is beyond suspicion or doubt or some totally acceptable circumstances will have to be brought to the notice of the High Court. Such cases may be few and far between but the possibility of such a case being there C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15, 43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15, 53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 41 / 53 cannot be ruled out. In the absence of such evidence or circumstances, complaint cannot be quashed;
d) No restriction can be placed on the High Court's
powers under Section 482 of the Code. The High
Court always uses and must use this power
sparingly and with great circumspection to prevent inter alia the abuse of the process of the Court. There are no fixed formulae to be followed by the High Court in this regard and the exercise of this power depends upon the facts and circumstances of each case. The High Court at that stage does not conduct a mini trial or roving inquiry, but, nothing prevents it from taking unimpeachable evidence or totally acceptable circumstances into account which may lead it to conclude that no trial is necessary qua a particular Director."
25. This court must confess that the substantial portion of its order is merely reproduction of the order of the Hon'ble Supreme Court and this Court is privileged to have guidance from the authoritative pronouncement made by the Hon'ble Supreme Court on this issue. Ld. Counsel for complainant/ respondent has prayed for dismissal of the revision petition on the ground that in Gunmala Sales Pvt. Ltd. case (Supra), Hon'ble Supreme Court, while summarizing the judgment, has inter alia held that under Section 138 NI Act, if the basic averments have been made, then the Magistrate can issue process and therefore, since in the present case, the basic averments have been made, the revision petition is liable to be C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15, 43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15, 53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 42 / 53 dismissed.
26. However, I consider that judgment has to be read in the entirety and as has been inter alia held by the Hon'ble Supreme Court in Gunmala Sales Pvt. Ltd. case (Supra) itself that the core of the Criminal Case are its fact, and in factual matters there are no fixed formula required to be followed by the Court unless it is dealing with an entirely procedural matter. It is pertinent to mention here that Hon'ble Supreme Court, in the same case, has also inter alia held that despite the principles of the basic averment, Hon'ble High Court will quash the complaint because of the absence of more particular about the role of the director in the complaint. It was further held that Hon'ble High Court may do so if it come across some unimpeachable and incontrovertible evidence which is beyond suspicion or doubt or totally acceptable circumstances which may clearly indicate that the director could not have been concerned with the issues of cheques and asking him to stand the trial would be abuse of the process of law. It is also relevant to note here that Hon'ble Supreme Court has laid down the above said principles for guidance for Hon'ble High court while exercising its jurisdiction under Section 482 Cr.P.C. To the understanding of this Court, the gist of the law laid down by Hon'ble Supreme Court starting from threeJudge Bench decision in SMS Pharma (1) is that the complaint, as a whole, must disclose that the proposed accused persons are actively looking after the day to day management of the company and responsible C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15, 43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15, 53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 43 / 53 for the conduct of its business and there must be specific averments to this effect. The summoning in a criminal case is a serious matter. It has repeatedly been held by the Apex Court that summoning in a complaint case should not be allowed to be used as an engine for harassment and oppression. The criminal law cannot be set into motion mechanically and the Ld. Magistrate is required to examine the material on record carefully. The order summoning the accused must also indicate that Ld. Metropolitan Magistrate has applied his mind to the facts of the case. As I have discussed above, the facts in each case are distinct in nature and therefore, the court is required to examine the facts in view of the settled proposition of the law and intent of the legislature. In respect of summoning of the Directors, other then Managing Director and Joint Managing Director and the signatories of the cheque, the settled position of law as laid down by the Hon'ble Supreme Court beginning from SMS Pharma (I) is that there has to be a specific averment in the complaint and the requirement of Section 141 NI Act should be met. It is a settled position of law that a director in a company cannot be deemed to be in charge of and responsible for the conduct of business of the company and the complainant is duty bound to make an averment as a matter of fact. It may be reiterated that in Saroj Kumar Poddar's case (Supra) Hon'ble Supreme Court reaffirmed that there has to be specific allegation as required under law. The vicarious liabilities against such directors can be invoked only if the requisite C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15, 43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15, 53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 44 / 53 statement is made in the complaint. The complainant is duty bound to make statement in the complaint regarding the part played by said directors in the transaction and there should be clear and unambiguous allegations as to how the directors are in charge of and responsible for conduct of the business of the company. Reliance can be placed upon N.K. Wahi's case (Supra). Similarly, the Hon'ble Supreme Court in Paresh P. Rajda's case (Supra) clarified that it would ultimately be the examination of the nature of averments made in the complaint. The position of law has again been aptly summarized in K.K. Ahuja's case (Supra) and National Small Industries Corporation Limited (supra).
27. In support of the nonapplicability of N. Rangachari's judgment, Ld. Counsel for the petitioner besides relying upon National Small Industries Corporation Limited (supra), has relied upon P.S. Shrinivasan vs. VLS Finance Ltd. (MANU/DE/2549/2008).
28. It is pertinent to mention here that in P.S. Shrinivasan's Case (Supra), the petitioners after having been summoned in the case under Section 138 Negotiable Instruments Act, approached Hon'ble High Court for quashing of criminal complaints. In the complaint, the complainant has specifically stated that, "The said accused persons are in charge of and responsible for the affairs of R1 company". The petitioners had relied upon SMS Pharma (I) case and the respondents had relied upon N. Rangachari's case (Supra). Hon'ble High Court inter alia held that on the C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15, 43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15, 53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 45 / 53 basis of SMS Pharmaceuticals vs. Neeta Bhalla (supra), the minimum averment to be made in complaint under Section 138 Negotiable Instruments Act has to contain three components :
(a) that the person sought to be arraigned as an accused was in charge of the affairs of the company;
(b) further, that the person sought to be arraigned as an accused was responsible to the Company for the conduct of its business; and
(c) further that such person was in such capacity as in (a) and (b) at the time when the offence was committed.
It was further interalia held that without the above averment, the requirement of Section 141 NI Act could not be said to be satisfied.
29. While dealing with N. Rangachari's judgment (supra), Hon'ble High Court of Delhi inter alia held as under: "a person in the commercial world having a transaction in the company is entitled to presume that the Directors of the company and in charge of the affairs of the company. This is contrary to the specific answer to question (b) in Neeta Bhalla where the Bench of three judges held that a Director in a company cannot be deemed to be in charge of and responsible to the company for the conduct of its business. The requirement under Section 141 NI Act is that the person sought to be made liable should be in charge of and responsible for the conduct of the business of the company and at the relevant time." Viewed in this C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15, 43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15, 53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 46 / 53 manner, it seems that the observations made in para 18 in N. Rangachari to the effect that the complainant need not specifically aver that "at the time of commission of the offence", the person concern was in charge of and responsible to the affairs of the company, and that such averment could be presumed, is not in conformity with the explanation of the law by the larger Bench of three judges in Neeta Bhalla.
None of the complainants, in these four matters, contain an averment that satisfies the requirement of law as explained by the Supreme Court in Neeta Bhalla. Even the presummoning evidence in each of these four complaints does not contain any statement therein to the effect that the petitioners were in charge of the affairs of the company and responsible to it for the conduct of its business at the time of the commission of the offence. The crucial statement that they were functioning as such "at the time of commission of the offence" is missing even in the presummoning evidence."
30. I consider that in view of the categorical pronouncement of the Hon'ble Supreme Court in SMS Pharma (I), it is no longer res integra that for summoning a director in a case under Section 138 of Negotiable Instruments Act, the specific averments, regarding their role and responsibilities in the management, affairs and conduct of business of the company is required to be made necessarily in the complaint. Mere bald C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15, 43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15, 53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 47 / 53 statement in this regard is not sufficient.
31. In respect of the submissions of the Ld. Counsel for respondents regarding invoking of doctrine of indoor management and application of N. Rangachari's Judgment (Supra), the same, since had been distinguished by our own Hon'ble High Court in P.S. Shrinivasan's case (Supra), cannot help the case of the respondent.
32. In respect of the inquiry under Section 202 Cr.P.C., Ld. Counsel for the respondent has relied upon judgment of our own Hon'ble High Court in Abhishek Agarwalla's case (supra) in which Hon'ble High Court has inter alia held that in the case under Section 138 Negotiable Instruments Act, if accused was living outside the jurisdiction of the Court, the Magistrate in such cases has only to consider whether the cheque was dishonoured, whether the proper demand notice was sent and still payment was not made etc. and as the offence is of technical nature and the commission of offence can be made out from the documents, the inquiry under Section 202 Cr.P.C. has to be limited to scrutiny of documents and recording of the statement of the complainant and cannot go beyond that. I consider that in view of the categorical judgment of Hon'ble High Court in this regard, no further discussion on this point is required.
33. However, I consider that in view of the settled proposition of law, as discussed herein above, the impugned order as challenged by the petitioner cannot sustain and is liable to be set aside on the following C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15, 43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15, 53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 48 / 53 grounds: The eleven complaints were filed by Anand Prakash Bansal (nine complaints) and M/s. Jwala Devi Enterprises Pvt. Ltd. (two complaints), on 11.9.2014 and out of these eleven complaints, three complaints were marked for 19.9.2014, four complaints for 20.9.2014, and remaining four complaints for 22.9.2014. Perusal of the record would indicate that in the said complaints on the day they were taken up by the Ld. Trial Court i.e. respectively on 19.9.2014, 20.9.2014 and 22.9.2014, Ld. Metropolitan Magistrate passed verbatim order summoning accused persons under Section 138 of Negotiable Instruments Act which is reproduced herein below: "Fresh file received by way of assignment. It be checked and registered. Present : Ld. Counsel for complainant along with AR of the complainant.
This complaint is filed u/s. 138 of NI Act. It is alleged in the complaint that the accused had issued two cheques in favour of the complainant in discharge of his liability. On presentation, the cheques were returned dishonored. Thereafter, the complainant made the demand for the payment of the cheques amount by giving the statutory notice. The accused failed to make the payment within the prescribed period of 15 days from the receipt of the demand notice. Hence, this complaint.
The AR of the complainant company has filed his evidence by way of affidavit Ex.CW1/A to prove the averments made in the complaint. AR of the complainant has reiterated the facts as averred in the complaint. Further, the AR of the complainant states that the complainant does not wish to lead any further evidence. Thus, pre summoning evidence on behalf of complainant is closed.
I have heard arguments on point of summoning and perused the complaint, evidence by way of affidavit, bank memos, cheques and demand notice.
From perusal of the record the case is within the prescribed period of limitation.
In view of the averments made in the complaint, this Court has territorial jurisdiction to entertain this complaint. No other offence other than Section 138 of NI Act is C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15, 43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15, 53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 49 / 53 made out against the accused. I take cognizance of the offence u/s 138 of NI Act against the accused.
Issue summons to the accused on filing PF/RC/Seed Post/approved Courier returnable on 20.11.2014. One copy of the duplicates of the summons be sent through PF/RC/Speed Post/approved Courier under the seal and stamp of the Court. If accused reside outside Delhi, process be served through concerned Ld. CJM/CMM. Ahlmad is directed to verify before sending the summons and before affixing the Court stamp on the courier envelop and that copy of the complaint and all documents be annexed with the summons. Complainant is directed to file PF within 10 days otherwise the complaint may be dismissed u/s. 204 (4) Cr.P.C."
34. Perusal of the above said orders would indicate that AR of the complainant company filed evidence by way of affidavit to prove the averments made in the complaint and the presummoning evidence on behalf of the complainant was closed on the same day. Ld. MM heard arguments on point of summoning, satisfied itself as to limitation and then in view of the averments, concluded that it had territorial jurisdiction and took cognizance of the offence and issued summons to all the accused persons. The perusal of the impugned order indicate that Ld. Metropolitan Magistrate even did not record its satisfaction that there is prima facie case against the accused persons under Section 138/ 141 Negotiable Instruments Act. Though, the Ld. Metropolitan Magistrate excluded the commission of any other offence, but did not mention that there are material on record which indicates that there are sufficient grounds to proceed under Section 138/ 141 Negotiable Instruments Act. The perusal of Negotiable Instruments Act would indicate that the Legislature, in their wisdom, specifically inserted Section 141 in the Act, to cover the cases where the C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15, 43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15, 53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 50 / 53 offence has been committed by company. Even at the cost of brevity, it may be reiterated that in order to attract the provision of Section 141 Negotiable Instruments Act, there has to be material on the record that the summoned accused was responsible to the company for the conduct of the business of the company. The summoning in a criminal case, as has been discussed above, cannot be allowed to be done mechanically. In a case where the accused persons are residents of a foreign country, the Ld. Metropolitan Magistrate is at least expected to go through the complaint and the material on record. In such like cases where the proposed accused persons are foreign national, the Ld. Metropolitan Magistrate may take precaution of recording the statement of the complainant and putting court question to him for eliciting the role and responsibility of such directors/ officers other than Managing Director, Joint Director and Signatory to the accused. It is pertinent to mention here that Section 165 Indian Evidence Act confers power upon the trial court to put court questions to discover the truth and the intention behind such is that while exercising its jurisdiction, the endevour of the court should be to reach the truth and to avoid misuse of the process.
The procedures prescribed in the law are the safeguard against abuse of process of law. The law laid down by the superior courts are meant to guide the courts below for the purpose of ensuring that an innocent person is not harassed by the Criminal Justice Delivery System.
C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15, 43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15, 53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 51 / 53
35. If we go through the complaints in all the eleven cases and the affidavit filed along with it, the same would indicate that there is only a casual averment that accused persons are actively engaged and in charge of day to day management, business activities and conduct of the accused company. The affidavit does not mention, in any manner, that what was the role played by such directors and what was their responsibility. Before summoning the accused persons in such cases and particularly where they are foreign national, Ld. Metropolitan Magistrate might have taken precaution in going through records.
36. Perusal of the trial court record indicates that the complainant had filed the reply, sent by the petitioners in response to the legal notice served upon them. In the said legal reply, the petitioners specifically stated that they were merely appointed as Non Executive Directors and were not involved in the day to day management and affairs of the company. In view of such clear averment made by the petitioners in their reply to the notice, Ld. Metropolitan Magistrate could have made inquiry from the complainant as to the role and responsibility of the petitioners in the management and conduct of the business of the accused company.
37. The petitioners have specifically stated that they were working with M/s. Hassad Netherlands B.V. It is also pertinent to mention here that one of the petitioners Mr. Nasser Mohammad MF Al Hajri is a State Minister in Qatar. Therefore, merely because M/s. Hassad Netherlands C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15, 43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15, 53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 52 / 53 B.V., who had invested huge amount of money in the accused company, it cannot be presumed that the petitioners were controlling the affairs of the accused company.
38. Therefore, in view of this discussion made above and the clear position of law as laid down in threeJudge Bench of the Hon'ble Supreme Court in SMS Pharma (I), I consider that Ld. Metropolitan Magistrate has summoned the petitioners mechanically without going through the material on record, which does not indicate in any manner that the petitioners were in charge and were responsible for the conduct of the business of the company, and therefore, the impugned order is liable to be set aside qua the petitioners. Hence, the revision petitions are allowed.
39. Trial Court Record be sent back to the Ld. Trial Court.
40. File of revision petitions be consigned to Record Room. Announced in the open court on 18th April, 2015.
(DINESH KUMAR SHARMA) ADDITIONAL SESSIONS JUDGE NEW DELHI/ 18.4.2015 C.R. No. 34/15, 35/15, 36/15, 37/15, 38/15, 39/15, 40/15, 41/15, 42/15, 43/15, 44/15, 45/15, 46/15, 47/15, 48/15, 49/15, 50/15, 51/15, 52/15, 53/15, 54/15, 55/15, 56/15, 57/15, 58/15, 59/15, 60/15, 61/15, 62/15. Page no. 53 / 53