Vinod Kumar Arora & Ors. vs M/S. Rohit Advertising Service
2008 Latest Caselaw 1658 Del

                  Reportable
*     HIGH COURT OF DELHI AT NEW DELHI

+     Crl.M.C. 2290/2008 & Crl.M.A.8531-32/2008

                               Date of decision: 15.09.2008

#     VINOD KUMAR ARORA & ORS.                ...... Petitioners

!                   Through : Mr. S.N. Gupta, Advocate


                            Versus


$     M/S. ROHIT ADVERTISING SERVICE
                                              ..... Respondent
^                   Through : Nemo.

%
      CORAM:
      HON'BLE MS. JUSTICE ARUNA SURESH

     (1) Whether reporters of local paper may be
         allowed to see the judgment?

     (2) To be referred to the reporter or not?            Yes

     (3) Whether the judgment should be reported
         in the Digest ?                                   Yes

                          JUDGMENT

ARUNA SURESH, J. (Oral)

1. Present petition is preferred by Vinod Kumar

Arora, Petitioner No.1 and Arora Housing Pvt. Ltd.,

Petitioner No.2 invoking inherent powers of this

court for quashing of summoning order dated 23 rd

March, 2007 passed by the Learned Metropolitan

Magistrate upon complaint dated 23.12.2002 under

Sections 138/141 Negotiable Instruments Act

(hereinafter referred to as „N.I. Act‟), filed by the

complainant, respondent Rohit Advertising Service.

2. Respondent company had got published

advertisements for Petitioner No.2 in the

newspapers and issued a bill for Rs.1,35,253/-.

Petitioner No.2 towards the payment of the said

amount issued a cheque of Rs.1,35,008/- dated

14.05.2002 bearing No.273748, drawn on Punjab

and Sind Bank, Rajindra Place, New Delhi in favour

of the respondent. The respondent on 12.11.2002

came to know that said cheque upon presentation

was dishonoured due to „insufficient funds‟.

Subsequently, respondent issued a Legal Notice

dated 23.01.2002 for demand of payment under the

said bounced cheque to Petitioner No.2.

Respondent filed a complaint on 23.12.2002 and

cognizance of the same was taken by the

Magistrate on 19.08.2005 who consequently

summoned Shri Kishan Kumar Arora, Chairman-

cum-Managing Director of Petitioner No.2. Since

Kishan Kumar Arora expired during the pendency

of the complaint, the complaint was dismissed by

the Magistrate.

3. Respondent filed a Revision Petition before the

Sessions Court against the dismissal of the

complaint and the Learned Additional Sessions

Judge while allowing the petition on 11.08.2006

remanded back the complaint to the Magistrate for

further action. Consequently, respondent filed a

fresh list of Directors before the lower court and

the Magistrate summoned the present Petitioners

vide order dated 23.03.2007. Aggrieved by the said

order, the present petition has been filed.

4. Mr. S.N. Gupta, learned counsel for the Petitioners

has submitted that in the complaint there are no

allegations against Petitioner No.1 and he was not

the signatory of the impugned cheque and was not

responsible for the discharge of liability of

Petitioner No.2 company. It is further submitted

that Petitioner No.1 was never arrayed as an

accused in the complaint and that he has been

summoned by the court only subsequent to the

death of Shri Kishan Kumar Arora, the Managing

Director of Petitioner No.2 and the person

responsible for the day to day business of

Petitioner No.2 company and therefore, the learned

Magistrate committed illegality by summoning

Petitioner No.1 after the death of Shri Kishan

Kumar Arora vide his order dated 23.03.2007. He

has prayed that the complaint qua him and the

summoning order of the court dated 23.03.2007

being illegal be quashed.

5. Respondent company had filed a complaint under

Sections 138/141 N.I. Act against Petitioner No.2

company through its Chairman and Managing

Director Shri Kishan Kumar Arora for having

published certain advertisements in various

newspapers for and on behalf of accused company.

Towards payment of the liability, accused company

issued a cheque for Rs.1,35,008/- dated 14.05.2002

bearing No.273748, drawn on Punjab and Sind

Bank, Rajindra Place, New Delhi in favour of the

complainant company. This cheque on presentation

was dishonoured. Consequent thereof complainant

served a notice of demand dated 23.11.2002 upon

the accused company demanding the cheque

amount. The said notice was duly served upon

accused company by UPC as per the averments

contained in para 6 of the complaint. Since accused

company failed to pay the demanded amount of the

impugned cheque, a complaint under Section 138

N.I. Act was filed. It is apparent that none of the

Directors or the Managing Director were sued in

their individual capacity by the complainant. Only

the company was sued through its Managing

Director Shri Kishan Kumar Arora. Shri Kishan

Kumar Arora died during the pendency of the

complaint and the learned M.M. dismissed the

complaint having being abated. Against the order

of the court, a Revision Petition was filed by the

complainant which was allowed by the Revisional

Court on 11.08.2006 and the case was remanded

back to the trial court with the directions to

proceed further in accordance with law.

Consequently, the complainant filed a list of

Directors before the learned trial court and vide his

order dated 23.03.2007, the trial court was pleased

to pass the following order:-

"23/3/07 Sh. Dinesh Chand Sharma Complainant in person.

The case has been filed today for consideration of application by way of which a list of directors was furnished where names were filed in Record by the complainant. Admittedly none of the directors whose name has been furnished on Record by way of the application was arranged as an..... However, after the death of main accused Roshan Lal Arora, the complaint was dismissed as abated which order was later on set aside by Sh. Ramesh Kumar ld. ASJ, Delhi, in Revision Petition No.16/06 dt. 11/8/06 wherein the court of ld. ASJ has directed this court to process further in the case against the accused company in view of the same, the accused company through its present MD (Managing Director) be summoned on filing PF/RC courier Dasti."

6. Thus, it is clear that the trial court issued summons

for appearance to the accused company to be

served through its present Managing Director.

These summons for appearance were received by

Petitioner No.1 and he put in appearance before

the trial court. Admittedly, notice under Section

251 Cr.P.C. has already been framed against the

Petitioners and now the complaint is pending trial

for recording of evidence of the complainant.

7. Petitioner No.1 filed his Affidavit as per the

directions of this court admitting that he was the

Director of the Company at the time of issuance of

the impugned cheque and still continues to be the

Director of the company. However, he is silent if he

after the death of Sh. Kishan Ku mar Arora he

became the Managing Director of the company and

if not who is the Managing Director of the

company. It is not disputed that he is not the

signatory of the cheque. The fact remains that the

company who is a juristic person that is persona in

law cannot be absolved of its liability to pay the

cheque amount which was issued by it through its

the then Managing Director who has since expired.

The court has summoned the company through the

present Managing Director. Under these

circumstances, when the liability of the company is

not absolved on the death of the Managing Director

and company is liable to pay the amount of the

impugned cheque to the complainant as claimed in

the complaint, it is irrelevant if in the complaint,

the complainant did not aver that Petitioner No.1

was also responsible for day to day business of the

company being its Director at the relevant time.

Company has to be represented through one of its

Directors.

8. Learned counsel for the Petitioner while referring

to 'S.M.S. Pharmaceuticals Ltd. v. Neeta

Bhalla and Anr., JT 2005 (8) SC 450', has

submitted that the complainant had not arrayed

Petitioner No.1 as one of the accused persons

along with the accused company and no

responsibility had been attributed to Petitioner

No.1 in the complaint. The learned M.M. was

wrong when he passed the impugned order which

is bad and is liable to the quashed. However, the

submissions of the learned counsel for the

Petitioners are not forceful to be accepted by the

court.

9. In the said case, the complainant had arrayed the

other Directors of the company along with accused

company in the complaint and when the Directors

challenged the summoning order, the court held

that the complainant should have specifically

mentioned in the complaint that all the accused

Directors were responsible for conducting the day

to day business of the company and in the absence

of such averments, the complaint as against the

Directors who were arrayed in their individual

capacity was liable to be quashed.

10. In the present case, Petitioner No.1 has not been

arrayed as co-accused with the company being the

Director of the company and personally liable for

the conducting the business of the company. It is

the accused company which has been sued by the

complainant through its Managing Director. The

order of the trial court clearly indicate that

Petitioner No.1 was not summoned in his individual

capacity by name as director of the company. It

was the company who was summoned through its

present Managing Director after the death of Shri

Kishan Kumar Arora.

11. Hence, I find no merits in this petition and the

same is accordingly dismissed in limine.

ARUNA SURESH (JUDGE) September 15, 2008 vk