Delhi District Court
Prashant Bothra vs M/S. Ptc India Financial Services Ltd on 31 March, 2018
IN THE COURT OF SH. SIDHARTH SHARMA, ASJ-02/FTC
NEW DELHI DISTRICT, PATIALA HOUSE COURTS, NEW DELHI
Criminal Revision Petition No. 24/2018
Prashant Bothra
S/o Vijay Bothra,
16/A Everest House,
46 C, J.L. Nehru Road, Kolkata. ....Petitioner / Revisionist
Versus
M/s. PTC India Financial Services Ltd.
7th Floor, Telephone Exchange Building
8, Bhikaji Cama Place,
New Delhi -110066. ....Respondent
AND
Criminal Revision Petition No. 25/2018
Prashant Bothra
S/o Vijay Bothra,
R/o Jindal House 8 A, Alipur Road,
Alipur, Kolkata. ....Petitioner / Revisionist
Versus
M/s. PTC India Financial Services Ltd.
7th Floor, Telephone Exchange Building
8, Bhikaji Cama Place,
New Delhi -110066. ....Respondent
Prashant Bothra vs. M/s. PTC India Financial Services Ltd.
CR Nos. 24/2018, 25/2018, 26/2018, 27/2018, 28/2018 & 29/2018 1/9
AND
Criminal Revision Petition No. 26/2018
Prashant Bothra
S/o Vijay Bothra,
R/o Jindal House 8 A, Alipur Road,
Alipur, Kolkata-70027. ....Petitioner / Revisionist
Versus
M/s. PTC India Financial Services Ltd.
7th Floor, Telephone Exchange Building
8, Bhikaji Cama Place,
New Delhi -110066. ....Respondent
AND
Criminal Revision Petition No. 27/2018
Prashant Bothra
S/o Vijay Bothra,
R/o Jindal House 8 A, Alipur Road,
Alipur, Kolkata- 70027 ....Petitioner /
Revisionist
Versus
M/s. PTC India Financial Services Ltd.
7th Floor, Telephone Exchange Building
8, Bhikaji Cama Place,
New Delhi -110066. ....Respondent
AND
Prashant Bothra vs. M/s. PTC India Financial Services Ltd.
CR Nos. 24/2018, 25/2018, 26/2018, 27/2018, 28/2018 & 29/2018 2/9
Criminal Revision Petition No. 28/2018
Prashant Bothra
S/o Vijay Bothra,
R/o Jindal House 8 A, Alipur Road,
Alipur, Kolkata -70027 ....Petitioner / Revisionist
Versus
M/s. PTC India Financial Services Ltd.
7th Floor, Telephone Exchange Building
8, Bhikaji Cama Place,
New Delhi -110066. ....Respondent
AND
Criminal Revision Petition No. 29/2018
Prashant Bothra
S/o Vijay Bothra,
R/o Jindal House 8 A, Alipur Road,
Alipur, Kolkata. ....Petitioner / Revisionist
Versus
M/s. PTC India Financial Services Ltd.
7th Floor, Telephone Exchange Building
8, Bhikaji Cama Place,
New Delhi -110066. ....Respondent
ORDER
1. By this order I shall dispose off six revision petitions filed on behalf of the petitioner and respondents, who are common in all the revision petitions, but they are with respect to different cheques and therefore separate complaints have been filed, by which he has challenged the order dated 18.12.2017 for framing of notice qua the Prashant Bothra vs. M/s. PTC India Financial Services Ltd. CR Nos. 24/2018, 25/2018, 26/2018, 27/2018, 28/2018 & 29/2018 3/9 petitioner, passed by Sh. Sumeet Anand, MM, in CC No. 48131/16 u/s 138 of the Negotiable Instruments Act titled as M/s. PTC India Financial Services Ltd. vs. M/s. Kohinoor Power Pvt. Ltd. & Ors.
2. Brief facts of the case are that the respondent is a company incorporated and registered under the provisions of Companies Act 1956 and engaged in business of finance. It is alleged that company i.e. Kohinoor Power Pvt. Ltd. approached the complainant seeking financial assistance to fund project for setting up a 66 MW Thermal Power Plant at Village Kuchidih, PS Chowka, Dist. Saraikela - Kharsawan, Jharkhand through a consortium of 4 Banks for getting the financing the said project. The cost of the project was estimated at Rs. 349 Crores, to be funded at a Debt: Equity ratio of 70:30. It is further alleged that M/s. Kohinoor Power Pvt. Ltd. Company entered into agreement dated 31.03.2011 executed between Bank of Baroda, Corporation Bank, Punjab National Bank and Bank of India. Further one of the existing lenders, Punjab National Bank was discharged from its right and obligations under the Facility agreement, thereby the complainant replace the equivalent amount of Rs. 50 crores vide facility agreement deed 22.05.2012. Thereafter towards the discharge of partial liability on the part of accused company cheque bearing no. 000309 dated 18.04.2016 drawn on Bank of Baroda, India Exchange, Kolkata amounting Rs. 62,50,000/- (Rs. Sixty Two lacs Fifty Thousand only) was issued by accused no. 1 and 4. The above mentioned cheque was deposited for encashment to its bank and was return unpaid to the complainant. Further the respondent had filed criminal complaint under section 138 of the N.I. Act against the petitioner and others. After receiving the file by way of assignment and upon perusal of the case file, ld. MM examined the AR of the complainant on oath and recorded Prashant Bothra vs. M/s. PTC India Financial Services Ltd. CR Nos. 24/2018, 25/2018, 26/2018, 27/2018, 28/2018 & 29/2018 4/9 the pre - summoning evidence and thereafter was pleased to issue summons to the petitioner / accused. The complainant has filed the aforesaid criminal case and other cases under section 138 / 141 of N.I. Act. Further vide order dated 11.04.2017 cognizance of offence was taken by the Court of Ld. MM and the summons were issued to the accused persons including the present petitioner.
3. It is argued by the ld. Counsel for the petitioner that he had resigned from the directorship of the company on 08.04.2016. It is stated that the cheque dated 31.05.2016 was dishonoured on the same day i.e. 31.05.2016. It is the case of the petitioner that he had resigned from the accused no. 1 company on 08.04.2016 and therefore at the time of the commission of offence under section 138 N.I. Act, the petitioner was not the director and therefore cannot be held vicariously liable and therefore he has prayed for setting aside the impugned order where notice was framed against him under section 138 N.I. Act. Ld. Counsel for the petitioner has relied upon the judgments of K. K. Ahuja vs. V.K. Vora & Anr. ; (2009) 10 SCC 48 and Manoj Kumar Gupta vs. Barclays Bank, PLC ; 2018 SCC OnLine Del 6587.
4. I have carefully heard the Ld. Counsels for petitioner as well as respondent.
5. In the case of B.S. Sarao vs. Securities and Exchange Board of India, 2008 (3) AD (Delhi) 109 it has been observed as under:-
"This again would depend on the facts and circumstances of every case. As pointed out by this Court in J.N. Bhatia vs. State 139 (2007) DLT 361 where a Form 32 is filed after the date of the issuance of the cheque that still would be a matter of leading evidence at the trial. If however, the Form 32 was filed before the issuance of the dishonoured cheque then Prashant Bothra vs. M/s. PTC India Financial Services Ltd. CR Nos. 24/2018, 25/2018, 26/2018, 27/2018, 28/2018 & 29/2018 5/9 such Form 32 can safely be acted upon to quash the complaint. A reference may also be made in this regard to the decision in Sarla Kumar v. Srei International Finance Ltd., 132 (2006) DLT 363.
17. It may be noticed at this stage that there have been instances where petitioners have, along with their petitions under Section 482 Cr.P.C., filed in this Court certified copies of the Form 32 filed by them in terms of the Companies Act, 1956 to show that they have ceased to be the Directors of the company at the time of commission of the offence. The document being a public document which can be easily verified even on an inspection of the records of the company with the Registrar of Companies does not require elaborate evidence at the trial. One such instance was a complaint filed by SEBI which was quashed by this Court by an order dated 30th January, 2008 in Crl. MC No. 2145/2006 Virender Kumar Singh v. Securities and Exchange Board of India. This Court held that where a certified copy of a Form 32 is placed on record and despite sufficient opportunities SEBI has not been able to rebut it, then the said certificate ought to be accepted as constituting sufficient proof of the fact that the person ceased to be a person in charge of the affairs of the company at the time of the commission of the offence. This again would depend on the facts and circumstances of every case. As pointed out by this Court in J.N. Bhatia v. State 139 (2007) DLT 361 where a Form 32 is filed after the date of the issuance of the cheque that still would be a matter of leading evidence at the trial. If however, the Form 32 was filed before the issuance of the dishonoured cheque then such Form 32 can safely be acted upon to quash the complaint. A reference may also be made in this regard to the decision in Sarla Kumar v. Srei International Finance Ltd. 132 (2006) DLT
363."
6. In the case of Rallis India Ltd. vs. Poduru Vidya Bhusan, 2011 (13) SCC 88 is has been observed as under:-
"Sections 138 & 141 - Dishonour of cheque - Offence by partnership firm - Discharge by High Court - Justification - Prashant Bothra vs. M/s. PTC India Financial Services Ltd. CR Nos. 24/2018, 25/2018, 26/2018, 27/2018, 28/2018 & 29/2018 6/9 Specific averment of vicarious criminal liability found to be contained in the complaint - Same revealed that the respondents - accused were the partners of the firm, at the relevant point of time and were looking after day to day affairs of the partnership firm - Held, burden of proof that at the relevant point of time they were not the partners is required to be discharged by them by leading evidence and unless it is so proved, in accordance with law, they cannot be discharged of their liability - Resultantly, impugned order discharging them set aside - Criminal Procedure Code, 1973 - Section 227 & 482."
7. In the judgment cited as K. K. Ahuja vs. V.K. Vora & Anr. ; (2009) 10 SCC 48 it was held that no specific averment in complaint as to the role of each director is required and the director / officers should be responsible for conduct of business of the company or in charge of the company and if there is specific averment, they are vicariously liable. Further in the judgment cited as Manoj Kumar Gupta vs. Barclays Bank, PLC ; 2018 SCC OnLine Del 6587, the director had resigned much before the issuance of cheque. However, in the present case the petitioner in one of the case is admittedly signatory to the cheque. It is also seen that the date of resignation of petitioner is also in dispute which requires trial. Therefore judgments relied upon by counsel for the petitioner are distinguishable in the facts and circumstances of the case.
8. It is not disputed that the petitioner was the director of the accused no. 1 company. It is stated in the pre - summoning evidence that the present petitioner had signed the facility agreement dated 31.03.2011 and was involved in day to day affairs and management of accused no. 1 company. The complainant had also annexed Form No. 32 / DIR -12 showing petitioner as the Director. It is pertinent to mention Prashant Bothra vs. M/s. PTC India Financial Services Ltd. CR Nos. 24/2018, 25/2018, 26/2018, 27/2018, 28/2018 & 29/2018 7/9 that respondent had filed an application under section 340 Cr. P.C against the petitioner with the averment that from the inspection of public documents of accused no. 1 company on the website of the Ministry of Corporate Affairs on 22.03.2018, it was shown that as per the borrower (accused) company a resignation letter of the petitioner was dated 04.06.2016 i.e. after the dishonour of the cheque whereas petitioner had claimed that he had resigned on 08.04.2016.
9. From the above facts it is clear that if the resignation and Form No. 32 is after the commission of the offence, it would be matter of trial whether the Director is vicariously liable for the offence alleged against him. In the present case it is a matter of dispute whether the resignation was of 08.04.2016 or 04.06.2016 and the same can be proved only during trial.
10. In these circumstances, I do not find any illegality or irregularity in the order passed by the Ld. MM in the impugned order in which notice has been framed against the petitioner. Accordingly, the revision petitions are dismissed.
11. An application under section 340 Cr. P.C had also been filed by the respondent, however, the said applications are premature as it shall be matter of trial and only thereafter a MM can come to the conclusion whether any forgery was committed or not.
12. In these circumstances, all the applications in all the revision petitions under section 340 Cr. P.C are also dismissed as premature with the liberty to the respondent to move before the Ld. MM, if he so desires.
Prashant Bothra vs. M/s. PTC India Financial Services Ltd. CR Nos. 24/2018, 25/2018, 26/2018, 27/2018, 28/2018 & 29/2018 8/9
13. Trial Court Records be sent back along with copy of this order. Revision files be consigned to record room.
Announced in the open Court (SIDHARTH SHARMA)
on 31st March 2018 ASJ-02/FTC, PHC/NDD
31.03.2018
Prashant Bothra vs. M/s. PTC India Financial Services Ltd. CR Nos. 24/2018, 25/2018, 26/2018, 27/2018, 28/2018 & 29/2018 9/9