Delhi District Court
Rohit Advertising Service vs Arora Housing Pvt Ltd. Cc No.- 684/2010 1 on 29 April, 2011
IN THE COURT OF SH. RAKESH KUMAR SINGH:
METROPOLITAN MEGISTRATE (NI ACT)-1, CENTRAL:
ROOM NO.-42, TIS HAZARI COURT COMPLEX, DELHI
29.04.2011
JUDGMENT
a. Serial No. of the case
684/10
b. Date of the commission of the offence
09.11.2002
c. Name of the complainant
M/s Rohit Advertising Service
d. Name of accused person and his parentage and residence
Arora Housing Pvt Ltd.(through Vinod Arora), R-882, New Rajinder Nagar, new Delhi.
Pooja Arora, W/o Kishan Arora, director of Arora Housing Pvt Ltd, R-882, New Rajinder Nagar, new Delhi.
e. Offence complained of or proved Dishonor of cheque for insufficient funds and stop payment punishable u/s-138 NI Act.
f. Plea of the accused and his examination (if any)
Not guilty. Amount paid. No liability.
g. Final Order
Held not guilty. Acquitted.
h. Date of such order
29.04.2011
i. Brief reasons:
"Just as there is evidence on behalf the prosecution so there may be evidence on behalf of the prisoner which may cause a doubt as to his guilt. In either case, he is entitled to the benefit of the doubt. But while the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy the jury of his innocence. . . Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and Subject also to any stationary Rohit Advertising Service vs Arora Housing Pvt Ltd. CC No.- 684/2010 1 exception. If, at the end of and on the whole of the case, there reasonable doubt created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained."
------Viscount Sankey, L. C. in Woolmington versus Director of Public Prosecution: 1935 AC 462 Complainant's case:
Dinesh Chander Sharma (claiming himself to be the proprietor of M/s Rohit Advertising Service) has filed the present complaint against the accused company on the basis of a dishonoured cheque Ex. CW1/2 received in discharge of payment of Bill Ex. CW1/1 raised in respect of advertising servises done by the complainant for the accused. Dishounour memo has been exibhited as Ex. CW1/3. Legal notice(Ex. CW1/4), UPC receipt (Ex. CW1/6) Returned Envelope (Ex. CW1/7) and reply (Ex. CW1/9) are exhibited for satisfying the requirements of proviso-(b) & (c) of Section-138 NI Act.
Stand of accused:
2. Stand of the accused is that all the payment has already been made before the presentation of the instant cheque.
Discussion on factual & legal position:
3. I am satisfied that dishonour due to stop payment instructions is also covered under Section-138 NI Act.
The issued has already been settled by the Hon'ble Supreme Court.
Hon'ble Supreme Court in M.M.T.C. Ltd. and Anr. v. Medchl Chemicals & Pharma (P) Ltd., (2002) 1 SCC 234 has held that:
"... The authority shows that even when the cheque is dishonoured by reason of stop payment instruction, by virtue of Section 139 the Court has to presume that the cheque was received by the holder for the discharge in whole or in part, of any debt or liability. Of course this is a rebuttable presumption. The accused can thus show that the 'stop payment' instructions were not issued because of insufficiency or paucity of funds. If the accused shows that in his account there was sufficient funds to clear the amount of the cheque at the time of presentation of the cheque for encashment at the drawer bank and that the stop payment notice had been issued because of other valid Rohit Advertising Service vs Arora Housing Pvt Ltd. CC No.- 684/2010 2 causes including that there was no existing debt or liability at the time of presentation of cheque for encashment, then offence under Section 138 would not be made out. The important thing is that the burden of so proving would be on the accused. ..."
Hon'ble Supreme Court in Goa Plast (Pvt.) Ltd. v. Chico Ursula D'Souza, (2003) 3 SCC 232 has observed that:
"Chapter XVII containing Sections 138 to 142 was introduced in the Act by Act 66 of 1988 with the object of inculcating faith in the efficacy of banking operations and giving credibility to negotiable instruments in business transactions. These provisions were intended to discourage people from not honouring their commitments by way of payment through cheques. The court should lean in favour of an interpretation which serves the object of the statute. A post-dated cheque will lose its credibility and acceptability if its payment can be stopped routinely. The purpose of a post-dated cheque is to provide some accommodation to the drawer of the cheque. Therefore, it is all the more necessary that the drawer of the cheque should not be allowed to abuse the accommodation given to him by a creditor by way of acceptance of a post-dated cheque. In view of Section 139, it has to be presumed that a cheque is issued in discharge of any debt or other liability. The presumption can be rebutted by adducing evidence and the burden of proof is on the person who wants to rebut the presumption. This presumption coupled with the object of Chapter XVII of the Act leads to the conclusion that by countermanding payment of a post-dated cheque, a party should not be allowed to get away from the penal provision of Section 138. A contrary view would render S. 138 a dead letter and will provide a handle to persons trying to avoid payment under legal obligations undertaken by them through their own acts which in other words can be said to be taking advantage of one's own wrong. ..."
The above view has been confirmed by a three judges bench of the Hon'ble Supre Court in Rangappa vs S. Mohan, (2010) 11 SCC 441.
(In the instant case, accused has not tried to establish any fact that he was having sufficient funds in his account and the stop payment instructions were issued for other reasons. In such circumstances, it has to be held that the instant dishonour falls under Section-138 NI Act).
4. I am satisfied that defence taken by the accused as to non receipt of legal demand notice can not succeed. Accused had not controverted the correctness of address appearing on legal demand notice and returned envelopes. Legal demand notice has to be treated as served. There is sufficient material on the record to draw the presumption under Section-27 General Clauses Act and the same has to go in the favour of the complainant. In this respect it will be apt to quote Hon'ble Supreme Court in C.C. Alavi Haji v. Palapetty Muhammed and Another (2007) 6 SCC 555:
Rohit Advertising Service vs Arora Housing Pvt Ltd. CC No.- 684/2010 3 "17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskarans case (supra), if the giving of notice in the context of Clause
(b) of the proviso was the same as the receipt of notice a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act."
(In this respect, it may also be noted that subsequently complainant brought on record a reply receive on behalf of accused company. This reply is Ex. CW1/9).
4.1. So far as claim of non-service of individual legal demand notice is concerned, I consider that once a legal demand notice is served upon a drawer company under proviso-(b) to Section-138 NI Act, there remains no necessity to serve a notice upon the individual directors of the accused company to make them liable under Section-141 NI Act.
Hon'ble High Court of Delhi in Jain Associates And Ors. vs Deepak Chawdhary & Co. 80 (1999) DLT 654 has held that:
"15. As regards the requirement of service of notice on all the partners i.e. petitioners No. 2 and 3 is concerned the notice was to be served "on the drawer of the cheque". In the present case, the drawer is a partnership firm acting through one of its partner. Section 141 of the Act is a deeming provision holding every person who was incharge of and was reasonable to the company for the conduct of the business of the company or partnership firm as well as the firm shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Section 141 does not require that each and every partner of the firm is required to be issued notice. The above said deeming provision imposing vicarious liability is to be seen in the right of the observations of the Supreme Court in M/s. Electronics Trade and Technological Development Corp. Ltd. Secundrabad Vs. M/s. Indian Technologist and Engineers 1996 JCC 155 supra. Accordingly on the basis of the language of clause (b) of proviso to Section Rohit Advertising Service vs Arora Housing Pvt Ltd. CC No.- 684/2010 4 138, one finds it difficult to accept that each and every partner or Director is required to be served with a notice."
5. Dinesh Chander Sharma is claiming himself to be the proprietor of the Payee of the instant cheque i.e. M/s Rohit Advertising Service. However, he has not brought on record anything establishing his connection with the Payee i.e. M/s Rohit Advertising Service. A mere statement in the affidavit, in my considered opinion, is not sufficient to grant him a right to make a complainant on behalf of the Payee.
After having dealt with the judgments titled Shankar Finance and Investments v. State of Andhra Pradesh & Ors., (2008) 8 SCC 536, Janki Vashdeo Bhojwani v. Indusind Bank Ltd.,(2005) 2 SCC 217, National small Industries Corporation Ltd. v. State (NCT of Delhi) & Ors., (2009) 1 SCC 407, Hon'ble Supreme Court in Milind Shripad Chandurkar vs Kalim M.Khan & Anr. Criminal Appeal No.-643/2011 decided on 03.03.2011 has observed and held as under:
"9. The only issue involved herein is as to whether the appellant owns the said firm i.e., whether he is the proprietor of the said firm? The trial Court as well as the Appellate Court have held that a sole proprietary concern is no independent legal entity and its identity remains inseparable from its proprietor. But it merely remains a legal proposition. None of the said courts held that the appellant was the sole proprietor of the said firm.
22. Thus, in view of the above, the law stands crystallised to the effect that a person can maintain a complaint provided he is either a "payee" or "holder in due course" of the cheque.
23. In the instant case, it is evident that the firm, namely, Vijaya Automobiles, has been the payee and that the appellant cannot claim to be the payee of the cheque, nor can he be the holder in due course, unless he establishes that the cheques had been issued to him or in his favour or that he is the sole proprietor of the concern and being so, he could also be payee himself and thus, entitled to make the complaint. The appellant miserably failed to prove any nexus or connection by adducing any evidence, whatsoever, worth the name with the said firm, namely, Vijaya Automobiles. Mere statement in the affidavit in this regard, is not sufficient to meet the requirement of law. The appellant failed to produce any documentary evidence to connect himself with the said firm. It is evident that the firm had a substantial amount of business as in one month it sold the diesel to respondent no. 1 - a single party, for a sum of Rs. 7 lakhs. The appellant would, in addition, have also been carrying out business with other persons. Thus, a person with such a big business must have had transactions with the bank and must have been a payee of income tax, sales tax etc. Thus, in such a fact-situation, there would be no dearth of material which could have been produced by the appellant to show that he was the sole proprietor of the said Rohit Advertising Service vs Arora Housing Pvt Ltd. CC No.- 684/2010 5 firm. The appellant failed to adduce any evidence in this regard, nor made any attempt to adduce any additional evidence at the appellate stage, in spite of the fact that the respondent is raising this issue from the initiation of the proceedings."
In the instant case, the complainant is also claiming himself to be the sole proprietor of the firm, however he has not tried to adduce any evidence to establish this fact. The cheque in question is in the name of M/s Rohit Advertising Service and not in the name of individual complainant. The question posed before and answer given by the Hon'ble Suprme Court in the above noted case squarely apply to the instant case.
In such circumstances, it has to be held that Sh. Dinesh Chander Sharma failed to establish any connection with the payee i.e. M/s Rohit Advertising Service and therefore this complaint has to fail.
6. The next issue is the question of liability which is the centre stage of the present controversy.
7. Complainant is primarily relying upon the mandatory presumptions of law. The bill Ex. CW1/1 can not be relied upon since it appears to be a carbon copy and no permission has been obtained to lead secondary evidence. Complainant has not led any other evidence or filed any other documents in support of his claim. Mandatory presumptions of law arising under section-118 & 139 NI Act may be summarized as under:
Section-118 of Negotiable Instruments Act reads as under:
"118. Presumptions as to negotiable instruments.-
Until the contrary is proved, the following presumptions shall be made:
(a) of consideration: that every negotiable instrument was made or drawn for consideration, and that every such instrument when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration;"
Section-139 of Negotiable Instruments Act reads as under:
"139. Presumption in favour of holder.- It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt, or other liability."
7.1. No doubt, the mandatory presumptions of law may arise in favour of the complainant. However, the inference of presumptions can always be rebutted.
7.2. Accused has tried to rebut the mandatory presumptions in respect of the consideration, liability and the existence of the liability.
Rohit Advertising Service vs Arora Housing Pvt Ltd. CC No.- 684/2010 6
8. Some extract from the cross examination of the complainant may beneficially be reproduced as under:
"I represented the cheque to my accounts after the expiry of about 5 months because the company said to wait for some more time."
(Pertinently, complainant has not brought on record anything showing the above request made by the accused company. No doubt, a payee of the cheque is entitled to present the cheque within it validity. However, If the complainant himself is saying that a request was made by the drawer, he should have brought something on record in this respect at least in the peculiar circumstances appearing in the present case).
"The payment which I received through the above cheque was not against the bill in question."
(This statement pertains to the cheque No.- 273748 for Rs. 25,000/-. This cheque was encashed on 29.05.2002. Pertinently, complainant has not shown, explained, establish or brought on record anything in respect of the any other dealing against which an amount of Rs. 25,000/- was received by him.) "The payment which I received through the above cheque was not against the bill in question."
(This statement pertains to the cheque No.- 274907, cheque No.- 282051 and cheque No.- 563478 (for Rs. 30,000/-). All these three cheques were encashed from 31.05.2002 to 26.04.2002. Pertinently, complainant has not shown, explained, establish or brought on record anything in respect of the any other dealing against which such cheques were received and encashed by him).
"It is correct that the document Ex. CW1/D2 bears my signature at point-A and B."
(This document is a voucher establishing the payment of Rs. 75,000/- by cheque No.- 274907 to M/s Rohit Advertising Service as a part payment against the cheque No.-273748. This document bears the date 31.05.2002. The complainant clearly admits his signature on this document. I see no reason to discard this document. A mere explanation without anything more can not be sufficient to discredit the worthiness of this document. A payment of Rs. 75,000/- against the present cheque even before its presentation is established).
"It is correct that the Ex. CW1/D3 bears the signature of my employee at Point-A."
(This document is a voucher establishing a payment of Rs. 5,000/- by cheque No.-282051 to M/s Rohit Advertising Service. This document bears a date 17.6.2002 i.e. prior to the presentation of the present cheque. Though the complainant tried to deny the signature in the very next sentence of his cross examination, however the same can not provide any help to him. If such was the position, the complainant could have examined his employee to controvert the above factum. But he chose not to do so at his own peril. A payment of Rs. 5,000/- is also established. It may be noted that complainant has not shown, explained, establish or brought on record anything in respect of the any other dealing against which such payment might have been received by him).
Rohit Advertising Service vs Arora Housing Pvt Ltd. CC No.- 684/2010 7 8.1. Accused company represented by Vinod Arora(director) has claimed to have paid the amount through cheques. Through the reply of legal demand notice which is exhibited by the complainant himself, the accused company had claimed to have paid the entire amount.
8.2. From the cross examination of the complainant(as discussed above), a payment of Rs. 1,35,000/- (cheque No.- 273748 for Rs. 25,000/- + cheque No.- 274907 for Rs. 75,000/- + cheque No.- 563478 for Rs. 30,000/- + cheque No.-282051 for Rs. 5,000/-) is established. The payment was made prior to the presentation of the cheque in question. Complainant has not shown, explained, establish or brought on record anything in respect of the any other dealing against which such cheques were received and encashed by him.
9. In such circumstances, version of the accused has to be preferred over the version of the complainant.
Nature and extent of rebuttal
10. Hon'ble Supreme Court in Kamala S vs Vidyadharan M.J. & Anr Appeal (crl.) 233 of 2007, decided on 20.02.2007 "15. The Act contains provisions raising presumption as regards the negotiable instruments under Section 118(a) of the Act as also under Section 139 thereof. The said presumptions are rebuttable ones. Whether presumption stood rebutted or not would depend upon the facts and circumstances of each case.
16. The nature and extent of such presumption came up for consideration before this Court in M.S. Narayana Menon Alias Mani V. State of Kerala and Anr. [(2006) 6 SCC 39] wherein it was held :
"30. Applying the said definitions of "proved" or "disproved" to the principle behind Section 118(a) of the Act, the court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration dos not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon."
17. This Court clearly laid down the law that standard of proof in discharge of the burden in terms of Section 139 of the Act being of preponderance of a probability, the inference therefor can be drawn not only from the materials brought on record but also from the reference to the circumstances upon which Rohit Advertising Service vs Arora Housing Pvt Ltd. CC No.- 684/2010 8 the accused relies upon. Categorically stating that the burden of proof on accused is not as high as that of the prosecution, it was held;
"33. Presumption drawn under a statute has only an evidentiary value. Presumptions are raised in terms of the Evidence Act. Presumption drawn in respect of one fact may be an evidence even for the purpose of drawing presumption under another."
It was further observed that ;
" 38. If for the purpose of a civil litigation, the defendant may not adduce any evidence to discharge the initial burden placed on him, a "fortiori" even an accused need not enter into the witness box and examine other witnesses in support of his defence. He, it will bear repetition to state, need not disprove the prosecution case in its entirety as has been held by the High Court.
39. A presumption is a legal or factual assumption drawn from the existence of certain facts."
10.1. Hon'ble Supreme Court in Krishna Janardhan Bhat v. Dattatraya G. Hegde 2008 AIR SCW 738 has observed that:
"30. The proviso appended to the said section provides for compliance with legal requirements before a complaint petition can be acted upon by a court of law. Section 139 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability.
31. The courts below, as noticed herein before, proceeded on the basis that Section 139 raises a presumption in regard to existence of a debt also. The courts below, in our opinion, committed a serious error in proceeding on the basis that for proving the defence the accused is required to step into the witness box and unless he does so he would not be discharging his burden. Such an approach on the part of the courts, we feel, is not correct.
32. An accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on record. An accused has a constitutional right to maintain silence. Standard of proof on the part of the accused and that of the prosecution in a criminal case is different.
... ....
34. Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of the accused is 'preponderance of probabilities'. Inference of preponderance of Rohit Advertising Service vs Arora Housing Pvt Ltd. CC No.- 684/2010 9 probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which he relies. ......
45. We are not oblivious of the fact that the said provision has been inserted to regulate the growing business, trade, commerce and industrial activities of the country and the strict liability to promote greater vigilance in financial matters and to safeguard the faith of the creditor in the drawer of the cheque which is essential to the economic life of a developing country like India. This however, shall not mean that the courts shall put a blind eye to the ground realities. Statute mandates raising of presumption but it stops at that. It does not say how presumption drawn should be held to have been rebutted. Other important principles of legal jurisprudence, namely, presumption of innocence as a human right and the doctrine of reverse burden introduced by Section139 should be delicately balanced. Such balancing acts, indisputably would largely depend upon the factual matrix of each case, the materials brought on record and having regard to legal principles governing the same."
It may be pertinent to mention here that a three judges bench of the Hon'ble Supreme Court in Rangappa Vs. S. Mohan decided on 07.05.2010 has considered the dictum of Krishna Janardhan Bhat (supra) and overruled the view so far as existence of liability is concerned, however, has not dissented with other parameters observed and laid down in the said case. It has been observed therein that:
"14. In light of these extracts, we are in agreement with the respondent-claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. "
10.2. I am of the opinion that an accused has a right to rebut the presumption by placing reliance upon the circumstances brought and material placed by the complainant. Hon'ble Supreme Court in Rangappa Vs. S. Mohan decided on 07.05.2010 has further held that:
"However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Rohit Advertising Service vs Arora Housing Pvt Ltd. CC No.- 684/2010 10 Section 139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own."
11. I am of the opinion that the above attending circumstances are sufficient to displace the burden of proof which is somewhat lighter on accused. The law regarding the degree of proof required from the accused to prove his defence is well settled. The accused is required only to prove by preponderance of probabilities that the defence bears ring of truth. The accused is not required to prove his defence beyond reasonable realm of doubt as is required to be done by the prosecution. Accused has created a reasonable doubt in respect of existence of liability and consideration. Complainant failed to discharge the sifted burden. In such circumstances, prosecution has to fail.
12. I accordingly return a finding of not guilty against the accused company.
12.1. Accused company is hereby acquitted from the charges in the present complaint case.
13. It may be noted that once the prosecution failed under Section-138 NI Act against the drawer company, there can be no question of any vicarious liability of directors of a company under Section-141 NI Act. (In such circumstances, there is no necessity to deal with the issue whether Pooja Arora was retired before the presentation of the instant cheque or not.
14. Consequently, Accused Pooja Arora is also acquitted from the charges in the present complaint case.
14.1. Vinod Arora was only summoned to represent the company, and therefore there is no necessity to pass any separate order against him in his individual capacity since the accused company itself has been acquitted from the charges.
Collateral Issue Before parting with order, I would like to point out some strange part of the present file.
15. The complaint was filed against the accused company (purportedly through the MD Kishan Kumar Arora). Accused was summoned. At that stage there was no averment made for vicarious liability of any director and therefore there was no occasion to invoke Section-141 NI Act against any of the directors of the accused company. The complaint was only against the company.
15.1. In my considered view, a complainant can not claim that who will represent the accused company. Section-305 Cr.PC provides the procedure for such circumstances. And it is only the accused company which has a right to appoint a representative on its behalf for representation in the proceeding.
Rohit Advertising Service vs Arora Housing Pvt Ltd. CC No.- 684/2010 11 15.2. It would have been another thing if Ksihan Kumar Arora had been arrayed in the complaint and summoned a person vicariously liable under Section-141 NI Act.
15.3. However, in the present case, Kishan Kumar Arora was summoned and was treated as an individual accused. And after his death, the complaint was dismissed. The order however was set aside subsequently and revision court order for the continuance of proceedings against the accused company.
15.4. Accused company was again summoned (through its MD). However, subsequently order sheets have started showing the name of two accused person (Vinod Arora and Pooja Arora). These two names were mentioned in the application of the complainant dated 16.11.2006. However it appears that Ld. predecessor has already decided the matter vide order dated 23.03.2007 and directed the summoning of accused company through MD.
15.5. In such way proceeding continued against both the accused.
15.6. In my humble view, if present accused persons were not summoned as a person vicariously liable under Section-141 NI Act (they could not have been so summoned since there was no averments in the complaint in respect of vicarious liability of any director and at all relevant point of time only accused company was summoned), they could not have been proceeded against in the present complaint case. It is another thing that Vinod Arora has represented the accused company in implied sense as appearing from the record. However, the same can not be treated as sufficient for fastening vicarious liability on an individual.
16. The above facts and circumstances are noted with apologizes to the reader.
17. A copy of this order be placed on the official website of the District Court.
(Rakesh Kumar Singh) MM(NI Act)-01, Central/29.04.2011 Rohit Advertising Service vs Arora Housing Pvt Ltd. CC No.- 684/2010 12