Ravinder Singh & Ors. vs Bigur Finance Ltd.
2013 Latest Caselaw 5585 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                RESERVED ON : 8th OCTOBER, 2013
                                DECIDED ON : 2nd DECEMBER, 2013

+             CRL.M.C. 838/2013 & CRL.M.A. 2711/2013

       RAVINDER SINGH & ORS.                  .... Petitioners
               Through : Mr.Jasmeet Singh, Advocate.

                                versus

       BIGUR FINANCE LTD.                      ....Respondent
                Through : Mr.Khalid Arshad, Advocate.

       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Petition under Section 482 Cr.P.C. has been preferred by the

petitioners for quashing of the summoning order dated 10.12.2012 and

consequent proceedings in Complaint Case No. 422/2001. The petition is

contested by the respondents. Counsel for the petitioners urged that they

had paid ` 52,65,000/- to the respondent by way of six drafts after

settlement of all their disputes. Petitioner No.1 (Ravinder Singh) had

instituted a suit being CS(OS) No. 343/2012 against Paramjit Singh,

Director of the respondent to claim ` 50,55,000/- paid in excess. After a

series of negotiation, the parties arrived at figure ` 52,65,000/- on the

basis of various factors involved in the loan transaction and the process of

reconciliation of accounts. The complainant settled the amount for `

52,65,000/- and it was paid on 13.02.2012 before presentation of the

cheques. Despite receiving the settled amount in full and final satisfaction

of all the claims, the respondent presented the cheques in the bank and

instituted proceedings under Sections 138 Negotiable Instruments Act

which cannot be sustained. Petitioner No.2 was at no point of time In-

charge of the affairs of the company and was not liable to be prosecuted

under Section 138 Negotiable Instruments Act. Counsel relied upon

'Alliance Infrastructure Project Pvt. Ltd. & Ors. vs. Vinay Mittal', 2010

(2) Crimes 672. Respondent's counsel urged that no such payment as

alleged was made pursuant to any settlement. The petitioners are liable to

pay ` 57,35,000/- towards the three cheques issued by them.

2. It is not disputed that loan agreement dated 07.10.2010 was

executed with the respondent and ` 1,00,00,000/- was taken as loan on

behalf of the petitioner No.3 through petitioner No.1, its director. It is also

not in dispute that three cheques for a sum of ` 1,10,00,000/- were given

to the respondent which on presentation were dishonoured. Payment of `

52,65,000/- is admitted. It further reveals that prior to the payment of `

52,65,000/-, the respondent had already presented the cheques in question

which were dishonoured. Legal notice dated 27.02.2012 was served upon

the petitioners to make the payment of the total amount of three cheques

within fifteen days. Six demand drafts of various dates amounting to `

52,65,000/- were given on 01.03.2012. Allegedly, the petitioners did not

pay the balance amount of ` 57,35,000/- despite promise. It prompted the

respondent to institute proceedings under Section 138 Negotiable

Instruments Act. The cause of action to file proceedings under Section

138 Negotiable Instruments Act had arisen in favour of the respondent

prior to making of payment of ` 52,65,000/- when the cheques in question

were dishonoured for 'insufficient funds'. The citation is not applicable to

the facts and circumstances of the case as in the said case, after receiving

partial payment, the complainant had presented the cheques for the whole

of the amount mentioned in the cheques. The petitioners have not placed

on record any cogent document to infer if payment ` 52,65,000/- was in

full and final settlement of all the claims. It is a matter to be adjudicated

during trial and disputed question of facts cannot be resolved in the

proceedings under Section 482 Cr.P.C. It would be primarily and

essentially within the domain of the Criminal Court to arrive at on its own

conclusion on appreciation of entire evidence.

3. Loan agreement was executed on behalf of the petitioner No.

3 by petitioner No.1 (its director). The cheques in question were issued by

petitioner No.1, who is the signatory of the cheques. No specific role in

obtaining the loan and issuance of the cheques has been attributed to the

petitioner No.2 in the complaint case. There are no averments in the

complaint showing consent or connivance on his part. It is not averred as

to how petitioner No.2 being director in the company was in-charge and

responsible to the company for the conduct of its business and how he was

liable for non-payment of the cheque amount. Petitioner No.2, simply by

being a director in the company, was not supposed to discharge day-to-

day functions on behalf of the company. There is no universal rule that a

director of a company is in-charge of its everyday affairs. Every director

is not automatically, vicariously liable for the offence committed by the

company - only the director / in-charge and responsible to the company

for the conduct of the business at the material time when offence was

committed would be liable. In the instant case, there are no specific

allegations in the complaint as to role played by petitioner No.2 in the

transaction.

4. In the light of above discussion, petition filed by the

petitioners is partly allowed and proceedings against the petitioner No.2

(Manjit Singh) are quashed. Trial Court shall proceed as per law against

the petitioners No.1 & 3.

5. The petition stands disposed of accordingly. Pending

application also stands disposed of being infructuous.

(S.P.GARG) JUDGE DECEMBER 02, 2013 tr