* THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision:07.03.2012
CRL. M.C. 2385/2011
SRIPRAKASH JAIN ..... Petitioner
Through: Mr.P.S.Bindra, Advocate.
Versus
BRIJESH ARYA & ANR. ..... Respondent
Through: Mr.M. P. Sinha, Advocate.
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J.
1. This petition challenges order dated 27th April 2011 of learned District Judge-cum-ASJ, Delhi passed in Crl. Rev. No. 09/2011 whereby the revision petition of the petitioner against the summoning order dated 21.12.2010 of the MM was dismissed.
2. The complaint was filed against M/s. Associated Switchgears & Projects Ltd. and its Directors namely Jawahar Lal Jain, Vikas Jain, Gaurav Jain and S.P. Jain under section 138 of Negotiable Instrument Act ('the Act' for short). All the accused persons were summoned under section 138 of the Act by the MM vide order dated 21.12.2010. The same was assailed by the Company and also by all the Directors except Jawahar Lal Jain. The revision petition qua Vikas Jain and Gaurav Jain was allowed whereas the same was disallowed qua the Company and the present petitioner. In other words, the summoning order Crl. M.C. 2385/2011 Page 1 of 4 against the Directors Vikas Jain and Gaurav Jain was set aside whereas the same against the others including the petitioner was maintained. The said order of the ASJ is impugned by the petitioner S.P. Jain mainly on the ground that he was not the Director of the Company as he had resigned from the Directorship of the Company with effect from 27th July, 2010. It was submitted by the learned counsel for the petitioner that the petitioner had resigned as Director of the Company on 27th July, 2010 and intimation in this regard was given to the Registrar of Companies and so the petitioner not being the Director of the Company at the time of issue of the cheque, was not vicariously liable for the same. It was also submitted that in any case, the allegations against the present petitioner and other Directors Vikas Jain and Gaurav Jain as set out in the complaint are similar and he being neither Incharge or responsible for the affairs of the Company, was not liable vicariously along with the Company.
3. To substantiate his plea that the petitioner had resigned from the Directorship of the Company with effect from 27th July, 2010, reference was made to Form-32 whereby the intimation was purported to have been given to the Registrar of Companies regarding resignation. It is noted that the date of intimation of resignation was not mentioned in the said Form-32. When the petitioner was called upon to furnish record and proof regarding date of intimation, he filed an affidavit stating that Form 32 was submitted belated by on 23rd November, 2010 with the Registrar of Companies. There being nothing Crl. M.C. 2385/2011 Page 2 of 4 on record to substantiate this plea of the petitioner and the date of intimation to the Registrar of Companies being a question of fact, this Court cannot record a finding of fact in this regard. It is also so because of the fact that there was no resolution placed on record of the Company to substantiate the plea of the petitioner having resigned from the Directorship of the Company on 27.07.2010. This was a triable issue to be proved by the petitioner.
4. The learned District Judge in the impugned order has noted, and rightly so, that the Revision Petition was filed before him on behalf of the Company through the petitioner as its Director. In the title of the petition, as also in the affidavit supporting it, the petitioner has stated himself to be the Director of the Company. If the petitioner had resigned from the Directorship of the company way back on 27.07.2010, then it was not understandable as to how he could have signed the petition as Director of the Company in February 2011. Swearing an affidavit claiming to be a Director of the Company could not be said to be by mistake. If the petitioner had severed his connections with the Company after having resigned, there could not have been any occasion for him to sign the petition and the affidavit as Director. All these would require trial and it would be upon the petitioner to prove these averments. In that factual situation, it cannot be said that his case was similar to that of other Directors Vikas Jain and Gaurav Jain. This was not a case in which this Court could see any illegality or infirmity in the impugned order of the District Judge Crl. M.C. 2385/2011 Page 3 of 4 calling any interference by this Court. The petition has no merit and is hereby dismissed.
M.L. MEHTA, J.
MARCH 07 , 2012 awanish Crl. M.C. 2385/2011 Page 4 of 4