Sriprakash Jain vs Brijesh Arya & Anr.
2012 Latest Caselaw 1644 Del

*               THE HIGH COURT OF DELHI AT NEW DELHI

                                                   Date of Decision:07.03.2012

                            CRL. M.C. 2385/2011

SRIPRAKASH JAIN                                             ..... Petitioner
                            Through:      Mr.P.S.Bindra, Advocate.
                      Versus

BRIJESH ARYA & ANR.                                       ..... Respondent
                            Through:      Mr.M. P. Sinha, Advocate.
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA


M.L. MEHTA, J.

1. This petition challenges order dated 27th April 2011 of learned District

Judge-cum-ASJ, Delhi passed in Crl. Rev. No. 09/2011 whereby the revision

petition of the petitioner against the summoning order dated 21.12.2010 of the

MM was dismissed.

2. The complaint was filed against M/s. Associated Switchgears & Projects

Ltd. and its Directors namely Jawahar Lal Jain, Vikas Jain, Gaurav Jain and

S.P. Jain under section 138 of Negotiable Instrument Act ('the Act' for short).

All the accused persons were summoned under section 138 of the Act by the

MM vide order dated 21.12.2010. The same was assailed by the Company and

also by all the Directors except Jawahar Lal Jain. The revision petition qua

Vikas Jain and Gaurav Jain was allowed whereas the same was disallowed qua

the Company and the present petitioner. In other words, the summoning order

against the Directors Vikas Jain and Gaurav Jain was set aside whereas the

same against the others including the petitioner was maintained. The said order

of the ASJ is impugned by the petitioner S.P. Jain mainly on the ground that he

was not the Director of the Company as he had resigned from the Directorship

of the Company with effect from 27th July, 2010. It was submitted by the

learned counsel for the petitioner that the petitioner had resigned as Director of

the Company on 27th July, 2010 and intimation in this regard was given to the

Registrar of Companies and so the petitioner not being the Director of the

Company at the time of issue of the cheque, was not vicariously liable for the

same. It was also submitted that in any case, the allegations against the

present petitioner and other Directors Vikas Jain and Gaurav Jain as set out in

the complaint are similar and he being neither Incharge or responsible for the

affairs of the Company, was not liable vicariously along with the Company.

3. To substantiate his plea that the petitioner had resigned from the

Directorship of the Company with effect from 27th July, 2010, reference was

made to Form-32 whereby the intimation was purported to have been given to

the Registrar of Companies regarding resignation. It is noted that the date of

intimation of resignation was not mentioned in the said Form-32. When the

petitioner was called upon to furnish record and proof regarding date of

intimation, he filed an affidavit stating that Form 32 was submitted belated by

on 23rd November, 2010 with the Registrar of Companies. There being nothing

on record to substantiate this plea of the petitioner and the date of intimation to

the Registrar of Companies being a question of fact, this Court cannot record a

finding of fact in this regard. It is also so because of the fact that there was no

resolution placed on record of the Company to substantiate the plea of the

petitioner having resigned from the Directorship of the Company on

27.07.2010. This was a triable issue to be proved by the petitioner.

4. The learned District Judge in the impugned order has noted, and rightly

so, that the Revision Petition was filed before him on behalf of the Company

through the petitioner as its Director. In the title of the petition, as also in the

affidavit supporting it, the petitioner has stated himself to be the Director of the

Company. If the petitioner had resigned from the Directorship of the company

way back on 27.07.2010, then it was not understandable as to how he could

have signed the petition as Director of the Company in February 2011.

Swearing an affidavit claiming to be a Director of the Company could not be

said to be by mistake. If the petitioner had severed his connections with the

Company after having resigned, there could not have been any occasion for

him to sign the petition and the affidavit as Director. All these would require

trial and it would be upon the petitioner to prove these averments. In that

factual situation, it cannot be said that his case was similar to that of other

Directors Vikas Jain and Gaurav Jain. This was not a case in which this Court

could see any illegality or infirmity in the impugned order of the District Judge

calling any interference by this Court. The petition has no merit and is hereby

dismissed.

M.L. MEHTA, J.

MARCH 07 , 2012 awanish