Delhi District Court
Ashok Kumar Jhunjhunwala vs Technology Development Board on 13 October, 2017
IN THE COURT OF DR. SATINDER KUMAR GAUTAM,
SPECIAL JUDGE;NDPS SOUTH DISTRICT, SAKET
Criminal Revision No. 270/2017
CNR No. DLST010056002017
Ashok Kumar Jhunjhunwala ..........revisionist/complainant
S/o Sh. Shyam Sunder Jhunjhunwala,
c/o 3E, Surya Towers,
105, S. P. Road, Secunderabad, Hyderabad500003
versus
Technology Development Board ..........respondent/accused
Wing - A Ground Floor, Vashwakarna Bhawan, Shaheed Jeet Singh Marg, New Delhi 110016 Date of Institution : 27th July 2017 Argued on : 09th October 2017 Date of order : 13th October 2017 O R D E R
1. This order shall dispose of Criminal Revision no. 270/2017 u/s 397 Cr. PC filed by respondentAshok Kumar Jhunjhunwala in CC No. 1692/2015 (new CC No. 466698/2016) titled as M/s Technology Devlopment Board vs M/s Reliance Cellulose Products Ltd. & ors. u/s 138 of Negotiable Ashok Kumar Jhunjhunwala vs Technology Development Board page no. 1 of 8 CR NO. 270/2017 Instruments Act (hereinafter referred as NI Act) against the order dated 06.02.2017 passed by Learned Metropolitan Magistrate whereby dismissed the application for discharged moved by accused no. 3 Ashok Kumar Jhunjhunwala (revisionist herein). Aggrieved with the order dated 06.02.2017 passed by Learned Metropolitan Magistrate present revision petition has been preferred.
2. After assigning of revision petition, notice of this revision petition was issued to respondent and complainant in complaint case. Trial Court Record was summoned.
3. Apart from the revision petition, an application for condonation of delay in filing the revision petition is also filed enclosed with the affidavit. Notice of this application also issued to the complainant.
4. So far as the condonation of delay application is concerned, it is argued that revisionist is resident of Hyderabad and having 65 years of age. Certified copy of impugned order dated 06.02.2017 was applied by the clerk of the counsel for the revisionist on 28.04.2017 and the same was issued by the copying agency on 18.05.2017. On 19.05.2017, when the matter was listed for hearing before trial Court refused to take on record the exemption application filed n behalf of accused no. 2 and 3 and further issued non Ashok Kumar Jhunjhunwala vs Technology Development Board page no. 2 of 8 CR NO. 270/2017 bailable warrants and fixed the matter for further proceedings on 28.07.2017. Thereafter, on 27.05.2017, upon an application for cancellation of NBW filed on behalf of accused no. 2 and 3, trial Court stayed the operation of NBW dated 19.05.2017 till next date of hearing i.e. 28.07.2017. Revisionist approached Hon'ble High Court by way of quashing petition u/s 482 Cr. PC seeking setting aside of summoning order dated 18.02.2016 and subsequent dismissal order dated 06.02.2017. On 17.07.2017, counsel for the revisionist again filed another quashing petition before Hon'ble High Court wherein the remaining accused persons i.e. accused no. 1 and 2 were made performa party. However, the said petition was also dismissed as withdrawn by Hon'ble High Court with specific direction to first approach to the Sessions Court. By way of present application, revisionist seeks to condon of 75 days delay in filing of present revision petition, which is beyond the control of the revisionist and same is being made in good faith and with bonafine intentions.
5. This application is opposed. However, no explanation as to why certified copy was applied after so long delayed as well as to approached the Court after being unexplained claimed of each day, delay was made to file revision. Therefore, no reasonable justified ground found for condonation of delay. However, in the interest of justice and circumstances, alleged delay is Ashok Kumar Jhunjhunwala vs Technology Development Board page no. 3 of 8 CR NO. 270/2017 hereby condoned subject to payment of cost of Rs. 10,000/ to be deposited in the DLSA within four weeks from this order.
6. So far as, accused no. 3/revisionist submitted that he is a non Executive Director of M/s Reliance Cellulose Products Ltd. trial Court while passing order dated 06.02.2017 trial Court has not applied judicious mind and dismissed the application seeking discharge of the revisionist. However, revisionist since July 2012 has ceased from working as whole director (Technical) of the company due to critical medical exigences. Therefore, he was appointed as nonExecutive Director. Being aggrieved by the summoning order dated 18.02.2016, revisionist filed an application u/s 227 Cr. PC, for his discharge. It is argued that trial Court has failed to appreciate the facts that revisionist neither signed the supplementary agreement nor the post dated cheques. The order under challenge passed in a casual manner which is contrary to the principal of natural justice. There is no specific averment against the revisionist in the complaint filed u/s 138 r/w Section 141 NI Act by the Board. Therefore, impugned order dated 06.02.2017 is liable to be set aside.
7. Learned counsel for revisionist has drawn the attention of the Court towards Section 141 NI Act.
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141. Offences by company (1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge, 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:
8. In para two of the complaint, it has been specifically mentioned that accused no. 2 and 3 are the Managing Director and Executive Director of accused no. 1 company and responsible for day to day activities of accused no. 1. Accused no. 2 and 3 executed one loan agreement dated 15.07.2011.
Accused no. 2 being the Managing Director is responsible for running the affairs of the company. He signed the cheque in question and being signatory to that cheque is liable under the Act. Copy of the loan agreement dated 15.07.2013 and the supplementary agreement dated 21.03.2013 are AnnexureB and C. Accused no. 2 and 3 have also executed personal guarantees in favour of the complainant alongwith the undertaking for non disposal of shareholding shortfall undertaking and collateral securities in the form of corporate guarantee of accused no. 1 company and irrevocable unconditional personal guarantee of Sh. Shyam Sunder Jhunjhunwala Ashok Kumar Jhunjhunwala vs Technology Development Board page no. 5 of 8 CR NO. 270/2017 (accused no. 2) and Sh. Ashok Kumar Jhunjhnwala (accused no. 3) were also executed in the complainant Board by them. The loan amount was secured by shares of value of Rs. 25 lacs of accused no. 1 company and collateral security in the form of corporate guarantee of accused no. 1 and personal guarantee of accused no. 2 and 3 were also executed in favour of complainant Board. Therefore, the revisionist is equally responsible for the act and responsible for criminal liabilities on behalf of respondent no. 1. Therefore, it is prayed that revision petition is liable to be dismissed.
9. Having heard the submissions of Learned counsel for the parties and gone through the trial Court record.
10 The trial Court in its order dated 06.02.2017 has relied upon the judgment of Aman Kumar Harjai vs State & Another (2015 VAD (Delhi) 187 wherein it was held that, "Needless to say, if the trial Court finds that no case is made out against petitioner, then decision of the Apex Court's in Adalat Prasad vs Rooplal Jindal and ors. (2004) 7 SCC 338 will not stand in the way of trial Court to drop the proceedings against the petitioner and if trial Court chooses to proceed against petitioner, then petitioner will have the remedy as Ashok Kumar Jhunjhunwala vs Technology Development Board page no. 6 of 8 CR NO. 270/2017 available in the law. It is so said because dropping of proceedings at Notice stage cannot possibly be equated with recalling of summoning order."
11. It was further submitted by the petitioner herein that so far as the role of the petitioner/revisionist in the financial functioning of accused no. 1 and that he is not signatory to either the cheque in question or to loan agreement dated 15.07.2011 and supplementary agreement dated 21.03.2013. The said averment is factually incorrect as copy of loan agreement dated 15.07.2011. Complainant showed that the same was in fact being executed by both the accused including the present revisionist. Even otherwise, not being signatory of cheque will absolve from responsibility in the complaint filed u/s 138 NI Act. It is also not disputed that revisionist is Director of accused no. 1 company. In para 3 of the present complaint, it has been specifically mentioned that the petitioner/revisionist is responsible for dayto day affairs of accused no. 1 company. The said fact has not been denied by petitioner/revisionist. In para 4 of the complaint, however, there is specific averment made in respect of the responsibilities and have a joint collateral securities by the petitioner/revisionist in the complaint as well as loan agreement.
Ashok Kumar Jhunjhunwala vs Technology Development Board page no. 7 of 8 CR NO. 270/2017
12. In case of Anil Hada vs Indian Acrylic Ltd., AIR 2000 SC 145 wherein it was observed that "the effect of reading Section 141 is that when the company is the principal offender under Section 138 of the Act the remaining persons are made offenders by virtue of the legal fiction created by the Legislature as per the section. Hence, the actual offence should have been committed by the company, and then alone the other two categories of persons can also become liable for the offence."
13. In view of the above discussion and judgments cited, revision petition does not found any merit and there is no illegality or perversity found in the order dated 06.02.2017. Hence, the present revision petition is hereby dismissed with the cost of Rs. 20,000/ to be deposited with the Delhi Legal Services Authority, Saket Courts within four weeks.
14. Trial Court Record be sent back to the Trial Court concerned alongwith copy of this order for necessary compliance.
15. Revision file be consigned to record room, after compliance of all other necessary formalities.
(announced in the (Dr. Satinder Kumar Gautam)
open Court on Special Judge (NDPS)/ASJ
th
13 October 2017) South District: Saket
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CR NO. 270/2017