Delhi High Court
Rebby Varghese vs M/S Haier Appliances Pvt.Ltd. & Anr. on 20 August, 2010
Author: Hima Kohli
Bench: Hima Kohli
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C.No.2223/2010 & Crl.MA Nos.8702-03/2010
Decided on 20.08.2010
IN THE MATTER OF :
REBBY VARGHESE ..... Petitioner
Through : Mr.Wills Mathews and Mr.D.K.Tiwari
Advocates
versus
M/S HAIER APPLIANCES PVT.LTD. & ANR. ..... Respondents
Through : Nemo
CORAM
* HON'BLE MS.JUSTICE HIMA KOHLI
1. Whether Reporters of Local papers may Yes
be allowed to see the Judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be Yes
reported in the Digest?
HIMA KOHLI, J. (Oral)
1. The present petition is filed by the petitioner praying inter alia for quashing a Criminal Complaint Case No.241/N/10/2006 filed by the respondent No.1 company/complainant against the petitioner and his two brothers, all Directors of M/s Majstic Agencies Pvt.Ltd., for an offence under Section 138 of the Negotiable Instruments Act (for short `Act') pending before the learned Metropolitan Magistrate, Tis Hazari Courts.
2. The limited grievance of the petitioner herein is that the complaint qua him is liable to be quashed as the contents thereof even if taken to be true, do not fulfill the ingredient of the offence against him. Crl.M.C. No.2223/2010 Page 1 of 5
3. The case of the respondent No.1 company/complainant as set out in the complaint is that the accused, who were Directors of M/s Majestic Agencies Pvt.Ltd., were appointed as one of its Dealers, for the sale of its electronic products and pursuant to an order for supply of some such products, marketed by the respondent/complainant, the goods were supplied to the accused from time to time and regular invoices were raised upon them; the goods received were duly acknowledged by the accused and further, they handed over a cheque dated 18.08.2006, for Rs.20,97,144/- drawn on Syndicate Bank Shanmugham Road(Main), Ernakulam Branch, as payment for the supplies made, which when presented by the respondent/complainant to its bankers, got dishonoured with the remarks, "insufficient funds". After completing the legal formalities by way of issuance of notice of demand etc., the complainant filed the aforesaid complaint in October, 2006, on which notice was issued by the learned MM and appearance is stated to have been entered by the accused. Counsel for the petitioner states that initially the accused Nos. 1 & 2, brothers of the petitioner and Directors in the company appeared before the learned Metropolitan Magistrate, along with the petitioner/accused No.3, however, on account of his non-appearance, later on non-bailable warrants have recently been issued against the petitioner.
4. The attention of this Court has been drawn to para 3 of the complaint filed by the respondent/complainant before the learned Metropolitan Magistrate (Annexure P-4). In para 3, the respondent/ complainant stated as below:
"3. That the accused is a Pvt.Ltd. concern. The accused are responsible for the day to day operation and decision making of the accused firm."Crl.M.C. No.2223/2010 Page 2 of 5
5. Counsel for the petitioner states that a bare perusal of the present complaint shows that the same is liable to be quashed as the respondent has not stated as to how the petitioner has been made an accused or was in charge of the business of the company at the relevant time. In this regard, he seeks to place reliance on the decisions of the Supreme Court in the case of K.K.Ahuja Vs. V.K.Vora & Anr. reported as 2009 (3) JCC (NI) 194 and in the case of National Small Industries Corp.Ltd. Vs. Harmeet Singh Paintal & Anr. reported as JT 2010 (2) SC
161.
6. No doubt that in a complaint, mere reproduction of the wording of Section 141(1) of the Act, is not sufficient to make a person liable to face prosecution and the same cannot be treated as the intention of the legislature for the reason that it would result in absurdity and could have disastrous consequences of roping in all persons related to the company, even if they have no role to play. However, this is not a case of that nature. The accused Nos. 1 & 2 and the petitioner/accused No.3 are real brothers. The company in question is a family held company. On enquiry, counsel for the petitioner does not make any assertion to the effect that the petitioner was not actively involved in the affairs of the company. He only states that the cheque in question does not bear his signatures and that the averments made in para 3 of the complaint are not sufficient to implead the petitioner as accused No.3.
7. At this stage, the Court is required to only examine the complaint as set out by the complainant, while exercising its discretion to quash a complaint. Averments made in para 3 of the complaint are not found to be ambiguous. The allegations in the complaint are clear that the Crl.M.C. No.2223/2010 Page 3 of 5 petitioner and the accused No.1 and 2 were responsible for the day to day affairs of the company and its decisions. That the complainant has not elaborated the exact role of the petitioner No.1 while stating that he is responsible for the day to day operations and decision making of the company, is not sufficient ground to throw out the complaint qua the petitioner, at this premature stage.
8. It may further be noted that in a recent judgment dated 28.7.2010 of this court in the case entitled "Rajesh Agarrwal Vs. State & Anr., (Crl.M.C. No.1996/2010), a Single Judge of this Court has observed that quashing of summoning order cannot be sought on the ground that the complaint and the evidence before the learned Metropolitan Magistrate does not disclose commission of offence by the petitioner/accused. If the petitioner has other defences available to him, including the fact that he was not a director of the company at the relevant time or that he was not responsible for the conduct of the affairs of the company or only a sleeping partner in a partnership firm etc., he is entitled to appear before the Metropolitan Magistrate and take such pleas. The proceedings under Section 138 of the Act being summary proceedings, the petitioner can make his submissions before the court that he has a valid and specific defence available with him to show that he need not face trial and he is prepared and ready to lead evidence to the said effect for which necessary permission can be sought from the trial court, for filing an affidavit in his defence or further, by filing an application seeking recall of any of the witnesses of the complainant for cross-examining them on the defence taken by him. Crl.M.C. No.2223/2010 Page 4 of 5
9. Having regard to the aforesaid facts and circumstances and in view of the fact that the petitioner has the remedy of filing an application before the learned Metropolitan Magistrate putting forth the specific defence taken by him herein, for seeking his discharge, this Court is not inclined to entertain the present petition and quash the summoning order. The petition is dismissed, along with the pending applications.
HIMA KOHLI,J
AUGUST 20, 2010
mk
Crl.M.C. No.2223/2010 Page 5 of 5