Delhi High Court
Vinay Kumar @ Vinay Kumar Kedia vs State (Nct Of Delhi) & Anr. on 3 December, 2010
Author: A. K. Pathak
IN THE HIGH COURT OF DELHI: NEW DELHI
+ CRL. M.C.1532/2007
% Judgment decided on: 3rd December, 2010
VINAY KUMAR @ VINAY KUMAR KEDIA .....PETITIONER
Through: Mr. R.N. Mittal, Sr. Adv. with
Ms. Suman Roni and Mr.
Manoj Kumar, Advs.
Versus
STATE (NCT OF DELHI) & ANR. .....RESPONDENTS
Through: Mr. Arvind Gupta, APP for the
State-Respondent no.1.
Mr. Girdhari Govind and Ms.
Noorum Nahar Firdausi, Adv.
for Respondent no. 2.
Coram:
HON'BLE MR. JUSTICE A.K. PATHAK
1. Whether the Reporters of local papers No
may be allowed to see the judgment?
2. To be referred to Reporter or not? No
3. Whether the judgment should be
reported in the Digest? Yes
A.K. PATHAK, J. (Oral)
1. Petitioner seeks quashing of complaint case no.
4346/01/04 under Section 138 of the Negotiable Instruments
Act, 1881 (for short hereinafter referred to as "the Act") titled as
Sagar Suri Estates & Finance Ltd. Vs. Kedia Castle Dellon
Industries Ltd. & Ors. pending in the court of Metropolitan
Magistrate, New Delhi.
2. Briefly stated, facts of the case are that respondent no.2
has filed a complaint under Section 138 of the Act against M/s
Kedia Castle Dellon Industries Ltd. (for short hereinafter
referred to as "the Company"). Amongst others, petitioner has
been impleaded in the complaint as accused no. 3, being its
Vice Chairman.
3. It has been alleged in the complaint that respondent no. 2
had provided financial assistance of Rs. 45 lakhs to the
Company. A lease agreement was executed between the
company and respondent no. 2 on 29th January, 1996. The
financed amount was to be repaid in installments. Thirty six
post dated cheques were issued by the Company towards the
installments. Cheques bearing nos. 676577 to 676582 dated
9th of May, June, July, August, September and October, 1997
respectively, for Rs. 1,70,000/- each, all drawn on The Bank of
Rajasthan Ltd., Panchsheel Park, New Delhi, issued towards
some of the installments, had been returned dishonored on
presentation for the reason "insufficient funds". Despite receipt
of demand notice, the company failed to pay the amount
involved in the cheques, within the prescribed period of
limitation, hence it had committed an offence under Section
138 of the Act. Accused nos. 2 to 5 were controlling and
managing the affairs of the Company, thus, were liable to be
prosecuted, in view of Section 141 of the Act.
4. After recording pre-summoning evidence Metropolitan
Magistrate summoned the accused including the petitioner.
That is how petitioner is before this Court.
5. Learned senior counsel for the petitioner has contended
that initially petitioner was one of the Directors of the Company
but had resigned on 12th January, 1995 i.e. much prior to
issuance of the cheques. Cheques were dishonored in the year
1997; since the amount involved in the cheques had not been
paid, offence can be said to had been committed in the year
1997. Petitioner was not holding any office in the Company at
that time, therefore, petitioner is not liable for prosecution
under Section 141 of the Act. To indicate that petitioner had
resigned from the Directorship on 12 th January, 1995, reliance
has been placed on the certified copy of Form-32 issued by
Registrar of Companies, West Bengal.
6. Per contra learned counsel for the respondent no.2 has
vehemently contended that the main accused is a private
limited company which was being managed by the family
members of the petitioner. No document had been placed on
record to show that intimation regarding resignation of the
petitioner had been filed with the Registrar of Companies in the
month of October, 1995 itself. In order to escape from the
prosecution, to which such officers and/or Directors are
amenable in view of Section 141 of the Act, such documents are
easily manipulated in such like cases. It is contended that the
petitioner was very much a Director of the Company in the year
1996 when cheques had been issued. He has further argued
that evidence is required to be led on the point as to whether
petitioner had actually resigned from the Company or this
pretext had been created to escape from punishment, after
cheques had been dishonored. In nutshell, his contention is
that the complaint cannot be quashed qua the petitioner at this
preliminary stage.
7. I have considered the rival contentions of both the parties
in the facts of this case and I find arguments of Senior Counsel
for the petitioner more convincing. Certified copy of Form-32
issued by the Registrar of Companies, cannot be doubted,
inasmuch as its authenticity cannot be disputed. In my view,
such a document is conclusive of the fact that petitioner had
resigned from the date mentioned in Form-32. It is not the case
of respondent no. 2 that the aforesaid certified copy is forged
and fabricated one, therefore, there is no point in putting the
petitioner to face trial on this point. In my view, certified copy
of Form-32 issued by Registrar of Companies, West Bengal has
to be accepted, as it is. Perusal of the same clearly shows that
petitioner had resigned from the Company much prior to the
issuance of the cheque, what to say of date when the cheques
were actually dishonored and offence had been committed.
8. In Sarla Kumar Vs. Sri International Finance Ltd. 2006
(132) DLT 363, a Single Judge of this Court, in similar facts,
has held as under:-
"In the present case as the petitioner has filed
the certified copy issued by the ROC itself,
authenticity thereof cannot be disputed Such a
document is conclusive of the fact that the
petitioner had resigned w.e.f. 20.8.1994.
Therefore, she was not incharge or responsible
for day-to-day affairs of company and could
not be so."
9. It may be pertinent to mention that this very Form-32 has
been accepted by a Single Judge of this Court in Crl. M.C. No.
1054/2007 and complaint involved in the said case had been
quashed qua the petitioner. In the said case also cheques
issued by the company on 9th October, 1996 had been
dishonored on 5th April, 1997. Petitioner claimed that he was
not Vice Chairman of the company as on the said date, having
resigned on 12th October, 1995. This plea was accepted. There
is no reason to take a different view in this case.
10. Since the petitioner had resigned from the office of Director
of the Company much prior to the date when the offence had
been committed, I am of the view that provisions of Section 141
of the Act would not be attracted in this case so as to make
petitioner liable for prosecution for the offence under Section
138 of the Act allegedly committed by the Company. Thus,
summoning of the petitioner is bad in law and cannot be
sustained.
11. For the foregoing reasons, order of Metropolitan Magistrate
summoning the petitioner, as well as the complaint qua the
petitioner is quashed.
12. Petition is disposed of in the above terms.
A.K. PATHAK, J.
DECEMBER 03, 2010
ga
