Rebby Varghese vs M/S Haier Appliances Pvt.Ltd. & ...
2010 Latest Caselaw 3895 Del

*           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.

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."

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

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.

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