Delhi High Court
Mrs. Arti Mittal vs State & Anr. on 21 October, 2009
Author: V.K.Shali
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. M.C. No. 1525/2008
Reserved on : 23.09.2009
Date of Decision : 21.10.2009
Mrs. Arti Mittal ......Petitioner
Through: Mr. Gurpreet Singh, Adv.
Versus
State & Anr. ...... Respondents
Through: Mr. Pawan Bahl, APP
CORAM :
HON'BLE MR. JUSTICE V.K. SHALI
1. Whether Reporters of local papers can be
allowed to see the judgment? YES
2. To be referred to the Reporter or not ? YES
3. Whether the judgment should be reported
in the Digest ? YES
V.K. SHALI, J.
1. This is a petition filed by the petitioner under Section 482
Cr.P.C. for quashing of the complaint case no. 1240/2007 titled
"Shri Roop Lal Vs. Mr. Amit Mittal and Others" presently pending
in the Court of Mr. R.L. Meena, the learned Metropolitan
Magistrate, Karkardooma Courts, Delhi. Alternatively, it has
been prayed that the summoning order dated 28th September,
2007 passed by the said learned Metropolitan Magistrate may be
set aside.
2. Briefly stated the facts of the case are that a complaint
under Section 138 read with Section 141 of the Negotiable
Instrument Act was filed by the respondent Roop Lal against Sh.
Amit Mittal, Managing Director and Smt. Arti Mittal, Director, the
present petitioner alleging that he had advanced a loan of Rs.
6,00,000/- from his hard earned money to Amit Mittal and Arti
Mittal for helping their company M/s Dooars Transport Ltd.
which was running in losses. It was alleged that Amit Mittal the
Managing Director had issued two post dated cheques dated 1 st
January, 2007 and 13th July, 2007 respectively for a sum of Rs.
5,00,000/- and 1,00,000/- drawn on Punjab & Sind Bank,
Roshanara Road, Delhi for the repayment of the said loan. Both
these cheques on presentation were dishonoured and whereupon
the respondent no. 1 Roop Lal gave a statutory notice calling
upon the present petitioner and the other two accused persons to
clear the cheque amount failing which he threatened them with
legal action. Since the amount was not paid a complaint under
Section 138 read with section 141 of the Negotiable Instruments
Act was filed against the company, Managing Director and the
present petitioner as the Director. It was alleged in the
complaint that the present petitioner Arti Mittal being the
Director and in-charge responsible for the conduct of the
business of the accused firm M/s Dooars Transport Ltd. had
committed an offence under Section 138 read with section 141 of
the Negotiable Instruments Act. After recording of preliminary
evidence the petitioner along with the other co-accused have
been summoned.
3. The summoning order and the filing of the complaint has
been challenged by virtue of the present petition.
4. I have heard the learned counsel for the petitioner and
perused the record. The main contention of the learned counsel
for the petitioner for setting aside the order of summoning and
the quashing of the complaint is to the effect that at the time
when the two cheques in question are purported to have been
issued that is on 1st January, 2007 and 13th July, 2007 which
are alleged to have been dishonoured, the present petitioner was
not the Director of the accused M/s. Dooars Transport Ltd. For
the purpose of canvassing the said argument, the present
petitioner has filed true copies of the annual return filed on
behalf of Dooars Transport Ltd. for the year 2006, 2007 and
2008 before the Registrar of Companies.
5. The learned counsel for the petitioner has drawn my
attention to certain pages of the said documents purported to
have been issued by the office of the Registrar of Companies to
canvass the point that the annual return filed by the company
does not show the present petitioner Arti Mittal as one of the
Directors of the Company in question at the relevant time, and
therefore, she could not be made responsible for an offence
under the doctrine of vicarious liability. The learned counsel for
the petitioner in support of his contention has also relied upon
the case titled Dr. (Mrs.) Sarla Kumar Vs. Srei International
Finance Ltd. 132 (2006) DLT 363 and Smt. Bina Sharma Vs.
HDFC Bank Ltd. Crl. M.C. No. 194/2008 dated 10th August,
2009 wherein this Court has relied upon the form No. 32 which
did not show the said petitioner Sarla Kumar as the Director at
the relevant time was taken to be as a conclusive proof that the
petitioner had resigned nine years prior from the date of issuance
of cheque, and therefore, quashed the complaint in the said case.
Similar was the order passed in case title Chandran
Ratnaswami bearing Crl. M.C. No. 941/2005 by this Court.
While as in Bina Sharma's case (supra) the fact were slightly
different in as much as in the said case, the summoning order
passed by the learned Magistrate was held to be not sustainable
on account of the fact because although there was an averment
in the complaint that the petitioner was in-charge and
responsible for the conduct of the business of the firm but there
was not an iota of evidence adduced at the pre summoning stage
so as to show she was in-charge and responsible for the conduct
of the business of the firm so as to make the summoning order
under Section 138 of the Negotiable Instruments Act sustainable
against her.
6. I have carefully considered all the three authorities. So far
as the Bina Sharma's case (supra) is concerned, the facts of the
said case are totally different than the facts of the present case.
In Bina Sharma's case (supra) the summoning order was set
aside on the ground that in a case under Section 138 Negotiable
Instruments Act not only there must be an averment that the
accused in question in the capacity of a Director is in-charge and
responsible for the day to day conduct of the business of the firm
but that averment in itself is not enough to warrant the issuance
of summoning order against the said Director unless and until
there is some evidence either by way of documents or way or oral
testimony in this regard. The Apex Court has also observed that
it is not mere reproduction of the ingredient under Section 141 or
142 of the Negotiable Instruments Act that would meet the
requirement of law but the complainant must also specify as to
how the given person is in-charge and responsible for conduct of
business of the firm in question.
7. In the present case this is not the submission of the
learned counsel for the petitioner, and therefore, Bina Sharma's
case is distinguishable. So far as the other two cases are
concerned, in the said cases certified copy of the form No. 32 was
purported to be taken as a conclusive proof for quashing of the
complaint or the order of summoning on the assumption that at
the relevant time the person in question was not the Director
while as in the instant case what is sought to be relied upon is
not the Form No. 32 but an annual return which is filed by the
Company in question in terms of statutory requirement under
Companies Act. It is on the basis of the annual return it is
sought to be urged that the petitioner was not the Director of the
Company in question.
8. First of all these annual returns are in the nature of self-
serving documents in as much as they are filed by the party or
the Company Secretary or any other official of the company.
One of the fundamental principles of evidence as enunciated
under Section 21 of the Evidence Act is that although a self-
harming admission is relevant because no person would make an
admission against his own interest unless and until it happens
to be true but as a self- favouring admission on the basis of the
same analogy is held to be not admissible and not relevant. If
that is permitted to be done then a party can manufacture as
much of evidence in his favour as is possible within his means to
save him or her from the clutches of law. Therefore, on this
analogy the annual return cannot be a basis for quashing the
complaint or the summoning order. Further, in one of the
annual returns there is a detail of the share holding in respect of
the present petitioner and her husband Amit Mittal which is
given apart from holdings of the other persons. These holdings
are shown as under:
Folio Name and address Father's/husb Number Amoun
Nos. of the and's name of equity t per
shareholders chares share
held in Rs.
27 Mittal Arti Sh. Amit Mittal 1,90,090 10
W-13/8 Western
Avenue, Sainik
Farm, New Delhi-
28 Mittal Amit Sh. Mauji Ram 1,98,410 10
Mittal
W-13/8 Western
Avenue, Sainik
Farm, New Delhi-
W-13/8 Western
Avenue, Sainik
Farm, New Delhi-
W-13/8 Western
Avenue, Sainik
Farm, New Delhi-
Sons-HUF (Karta)
3A, Auckland
Place, 8th Floor
Kolkatta-700017
(W.B.)
55 Balsaria Holdings N.A. 10000 10
Pvt. Ltd.
32, Ezra Street, 7th
Floor, Room No.
701, Kolkatta-
700017, W.B.
Pvt. Ltd.
9062/3 Ram Bagh
Road, Azad
Market, Delhi-
110006.
Ltd.
3A, Auckland
Place, 8 th Floor,
Kolkatta-700017
(W.B.)
Mittal
Mittal House,
Sevoke Road,
Siliguri District,
Jalpaiguri, 734
401 (W.B)
9. A perusal of the aforesaid holding would clearly show that
1,90,090 shares were held by the present petitioner and almost
similar was the holding of her husband in the said company.
The remaining shareholders were having only paltry shares in
the company. If this be the situation, it clearly makes out
prima facie the case what respondent no.2 is alleging in the
complaint that Ms.Arti Mittal was the Director of the company in
question at the relevant point of time when the cheques were
purported to had been issued with her knowledge as she was in-
charge and responsible at the relevant time. However, the
questions as to the date on which the annual return has been
filed or the factum of her being Director of the said company on
the relevant date are all disputed questions of fact which can be
decided only after the parties have adduced their respective
evidence. The criminal trial cannot be cut short by invoking
section 482 Cr.P.C. and raising disputed questions of fact.
10. For these reasons, I feel that the present petition essentially
raises a disputed questions of fact as to whether the petitioner
was a Director at the relevant time or not and the annual return
which has been filed by the petitioner to canvass the point that
she was not the Director at the relevant time is a question to be
decided only after parties have adduced their evidence, and
therefore, the present complaint or the summoning order dated
28th September, 2009 cannot be quashed.
1. Accordingly, the petition is dismissed. The expression of
any opinion hereinabove shall not be treated as an expression on
the merits of the case.
V.K. SHALI, J.
October 21, 2009
KP
