Smt. Pooja Sahni vs State Of U.P. & Another
2017 Latest Caselaw 8156 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
									       Reserved
 

 
Case :- CRIMINAL REVISION No. - 4531 of 2015
 

 
Revisionist :- Smt. Pooja Sahni
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Revisionist :- Sudhir Kumar Agarwal,Alok Misra
 
Counsel for Opposite Party :- G.A.,B.S. Pandey,K.K.Tewari
 
Hon. Ravindra Nath Kakkar, J.

This criminal Revision has been filed against the order dated 03.11.2015 passed by Additional Sessions Judge, Court No. 5, Jhansi in Revision No. 84 of 2015 in Case No. 2382 of 2014 (Manohar Lal Chaturvedi Vs. Pooja Sahni and another ) under section 138 N.I. Act, Police Station Nawabad, District Jhansi where the revisional Court set aside the order of the court below dated 6.4.2015 recalling the summoning order of Smt. Pooja Sahni.

Briefly stated facts are as follows:

Complainant Manohar Lal Chaturvedi filed a complaint case No. 2382 of 2014 against accused M/s Asex Construction Private Limited, Sumesh Sahni and Smt. Pooja Sahni under section 138 Negotiable Instrument Act. After enquiry the trial court summoned the accused person on 19.10.2012 under section 138 N.I. Act. Aggrieved against which accused filed a Criminal Misc. Application (Under section 482 Cr.P.C.) No. 346 of 2013. In compliance of the direction issued by the Hon'ble Court in application (U/s 482 Cr.P.C.) Smt. Pooja Sahni filed a discharge application before the lower court on which the court below allowed the application of accused Smt. Pooja Sahni and discharged her, aggrieved against this order, revision was preferred and the revisional court set aside the order of the lower court dated 6.4.2015, aggrieved against this, the present revision has been filed before this Court.

The subject matter of the dispute is that complainant gave three cheques to the tune of Rs. Six lacs to the accused person for resolving his financial crises. When he demanded his money, accused issued a cheque of Rs. Six lacs but when it was presented before the bank, it was dishonoured and after adopting the procedure of complaint, by the said complainant, a complaint was filed before the trial court and on the basis of inquiry the accused person M/s Asex Construction Private Limited through Managing Director Sri Sumesh Sahni and Director Smt. Pooja Sahni were summoned.

It is contended by learned counsel for the revisionist that the provision of section 141 N.I.Act has been ignored by the revisional court. The impugned order is based on surmises and conjunctures. The order of the trial court under section 245(2) Cr.P.C. was legal and justified as prima facie no case was made out against the revisionist. The order of trial court is passed under the direction of the High Court. Further contended that revisionist is only of the Director of the Company and she has not signed the alleged cheques for which she is being prosecuted. The alleged cheque was signed by the Sumesh Sahni and this case was not within the knowledge of the revisionist. Further contended that the alleged cheque were signed by Managing Director Sumesh Sahni, after the resignation from the Managing Director of the Company and this fact was well within the knowledge of the opposite party no. 2 i.e. complainant Manohar Lal Chaturvedi, since then this transaction was within the knowledge of Smt. Pooja Sahni, all the transaction of the cheque was between Sumesh Sahni and Manohar Lal Chaturvedi, so the company can not be held responsible for the acts of former Managing Director.

Per contra learned counsel for the opposite party submits that neither there is illegality nor perversity in the impugned order. The trial court has taken the legal preposition into consideration and as per the settled law concluded that accused Smt. Pooja Sahni had an active participation in the daily business of the Company at the time of the execution of the cheque, she was Director of the Company, prima facie responsible for the acts of Company as a Director and in support of the complaint various document has been filed in which Smt. Pooja Sahni as a Director had signed balance sheet of the Company, so her involvement and complicity in commission of the crime is prima facie established. Further contended that drawer of the cheque Managing Director who resigned from the Company is disputed fact, it is not to be considered at the stage of the summoning. Learned counsel for the revisionist has drawn the attention of the Court towards the fact that before the court below accused Smt. Pooja Sahni neither been personally present nor filed any document in support of her innocence and further contended that there is no provision of discharge in summon case trial. There is no doubt that 138 N.I. Act is the summon trial. Under these facts situation, the impugned order be set aside, order of the lower court is neither illegal nor perverse, so this revision is lacks merit and liable to be dismissed.

In the light of the contentions as raised by both the parties

1. Learned counsel for the revisionist in support of his contention has cited the case of 2013(3) JIC 167 (SC) Mrs. Aparna A Shah Versus M/s Sheth Developers Pvt. Lid. & others;

2. 2015(1) JIC 398(SC) Pooja Ravinder Devidasani Vs. State of Maharashtra & another

Learned counsel for opposite party no. 2 has cited the case law of 2016(2) JIC 111(ALD) Smt. B. Devi Vs. State of U.P. and others.

So far as the legal preposition as cited by both the parties are concerned in Mrs. Aparna A Shah (Supra), the Hon'ble Supreme Court has held that a person who had nothing to do with the matter, need not be robed in. A company being a juristic person, all its deeds and functions are the result of acts of others. Therefore, the officers of the company, who are responsible for the acts done in the name of the company, are sought to be made personally liable for the acts which result in criminal action being taken against the company. In other words, it makes every person who at the time the offence was committed, was in-charge of, and was responsible to the company for the conduct of business of the company, as well as the company, liable for the offence. It is further held that the proviso to sub-section enables certain persons to prove that the offence was committed without their knowledge or that they had exercised all due diligence to prevent commission of the offence.

In the case of Pooja Ravinder Devidasani (Supra), the Hon'ble Supreme Court has held that it is settled law that to attract a case under Section 141 of the N.lI. Act a specific role must have been played by a Director of the Company for fastening vicarious liability. The case before Hon'ble Supreme Court it was found that the appellant was neither a Director of the accused Company nor in charge of or involved in the day to day affairs of the Company at the time of commission of the alleged offence. Under these facts situation, the Hon'ble Court held in civil disputes, the parties can not be permitted to put criminal law into motion and Court can not be a mere spectator to it.

In the light of the aforesaid legal preposition, I have perused the impugned order as well as the lower court record. It transpires from the paras 2,5,6 and 7 of the Company that accused Sumesh Sahni and Smt. Pooja Sahni who are husband and wife do the construction work in the name of M/s Asex Construction Private Limited in which Sumesh Sahni is Managing Director and Smt. Pooja Sahni was a Director and these to accused had taken two plus four lacs in a separate cheque in the name of M/s Asex Construction Private Limited. The Managing Director Sumesh Sahni issued cheque by his signature to the complainant and at that time Smt. Pooja Sahni was a Director and they both are involved in the business of the Company has filed balance sheet pertaining to the year 2009 to 2012 which prima facie goes to infer that on the balance sheet accused Pooja Sahni put her signature as of Director which is prima facie indicative of fact that at the time of execution of the disputed cheques she has an active role and participation in the day to day business of the Company. So, prima facie after inquiry the trial court has summoned the accused under section 138 N.I. Act. So, in the aforesaid reasons, the law cited by learned counsel for the revisionist can not be said to be of any help.

Further it is relevant to mention that at the stage of the summoning, defence of accused which they may be adduced subsequently, can not be seen since there was no occasion to look into such probable defence. At the stage of issuing the summons, the Court has to see on the basis of the material available during the inquiry considering it intrinsic quality and necessary probability whether the prima facie minimum offence is made out or not . It is prima facie satisfaction of the court below no doubt on the basis of the material available during the inquiry. A bare perusal of the provision of section 138 and 141 N.I. Act, it is evident that every person who at the time of offence was committed, was incharge of and was responsible to Company for conduct of business of the Company as well as Company both shall be deemed to be guilty of offence. Meaning thereby to attract the criminal liability against a Director in a Company with reference to Section 141 of Act, minimum requirement necessary to be stated in the complaint is that the person concerned was incharge of and responsible to be conduct of business of Company. It is a necessary ingredient which would be necessary to proceed against such Director.

In S.M.S. Pharmaceuticals Ltd, Vs. Neeta Bhalla, 2006 (1) JIC 264 (SC), the Hon'ble Apex Court held that It is necessary to specifically averin a complaint under section 141 that at the time the offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements of Section 141 can not be said to be satisfied.

In the light of aforesaid legal preposition as I have already observed that the perusal of the complaint establishing the para 2,5,6 and 7 and the statement recorded under section 200 Cr.P.C. substantiated by the documentary evidence and balance sheet of the year 2009 to 2012, I am of the view that the reason of the dispute for the purpose of issuing of summon against Director is true satisfaction as has been concluded by the revisional court in its impugned order dated 3.11.2015 against which this revision has been filed. Further to add that section 141 N.I. Act is a independent of specific provision that in case an offence under section 138 N.I. Act is committed by a Company, the criminal liability of dishonoure of cheque extend to the Officer.

On the subject in issue, it is relevant to mention that in application (under section 482 Cr.P.C.) before this Court, there was a specific direction that Smt. Pooja Sahni would personally be present before the trial court and to prove her innocence, she would furnish necessary and relevant document which transpires from the impugned judgement that it has not been done before the trial court. Further to add that the offence under section 138 N.I. Act and the procedure for its trial is that of summons trial, the provision of the trial is mentioned in section 251 to 259, there is no provision of discharge. Under these provisions and further it is a established legal preposition that the summoning order neither can be reviewed nor recalled, that procedural law has not been taken into consideration by the trial Court but only on the basis of objection, summoning order has been recalled and that too not in the sole and spirit of the direction given by this Hon'ble Court in a writ order and for the sake of repetition at the time of execution of the disputed cheque which have been dishonoured, revisionist Smt. Pooja Sahni was a Director of the Company, she was in control of the daily affairs of the business of the Company which is substantiated by her signature as Director on the balance sheet submitted before the prescribed authority and prima facie was very well in the knowledge of the Director regarding issuance of a cheque which was later on dishonoured resulted into filing of the complaint and summoning of the revisionist as one of the accused.

In view of the aforesaid facts and reasons recorded above, the present revision has no force, and is accordingly dismissed.

Dt:20.12.2017

RPD/