Delhi High Court
Manoj Kumar Gupta vs Barclays Bank, Plc. on 16 January, 2018
$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 16.01.2018
+ CRL.M.C. 2002/2011
MANOJ KUMAR GUPTA ..... Petitioner
versus
BARCLAYS BANK, PLC. ..... Respondents
Advocates who appeared in this case:
For the Petitioner : Ms. Arti Bansal, Adv.
For the Respondent : Mr. Jeevan Kumar, Adv. with Mr.Sunny Verma,
Adv. for Mr.RP. Agarwal, Adv.
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
16.01.2018
SANJEEV SACHDEVA, J. (ORAL)
1. The petitioner impugns order dated 02.04.2011 whereby the
petitioner has been summoned in a complaint filed under Section 138
of the Negotiable Instruments Act ("hereinafter referred to as 'the
Act') being C.C. No.26713/2010.
2. Learned counsel for the petitioner submits that the petitioner
though was a director in the accused company, however had tendered
his resignation on 24.03.2010. It is contended that the resignation was
thereafter accepted on 19.08.2010 and the requisite form filed with the
Registrar of the Companies. Learned counsel further submits that the
subject cheque based on which the complaint has been filed was
issued on 21.07.2010, after the petitioner had already resigned and
had ceased to participate in any of the board meetings or take part in
any decision making of the accused company. Learned counsel further
contends that even the averments in the complaint are vague and do
not specifically show that the petitioner was in-charge or was
responsible to the company for the conduct of its business.
3. Learned counsel for the respondent, on the other hand, contends
that the fact that the petitioner was a director on the date when the
cheque was issued is established from the fact that the resignation was
accepted later. He contends that it would be a disputed question of
fact as to whether on the relevant date when the cheque was issued
petitioner continued as a director or not and disputed question of fact
are not to be gone into at this stage.
4. Though it would be a disputed question of fact as to whether
the had tendered resignation prior to the date when the cheque was
issued and was dishonoured, however, what is to be seen is whether
the complainant has made out a case for proceeding under Section 141
of the Act against the petitioner, who has been styled as a director.
5. It may be kept in mind that liability under Section 141 of the
Act is vicariously fastened on a person who is in-charge and
responsible to the company for the conduct of business of the
company. The principal liability is of the company and vicariously the
same is sought to be fastened on such person under Section 141 of the
Act.
6. It may also be noticed that when notice intimating dishonour of
cheque was served on the petitioner, the petitioner replied contending
that the petitioner had already resigned from the company.
7. About the role of petitioner, the complainant in the complaint
has stated as under:-
"2. That Accused No. 1 is a company incorporated
under the Companies Act, 1956, having its Registered
Office at 3rd Floor, Abhishek Complex, Akshar Chowk,
Old Padra Road, Vadodra, Gujarat-390020 and deals in
the business of Information Technology services. The
Accused Nos. 2 to 8 are the directors of the said Accused
No.1 company, and as such are in charge of and are
responsible for the conduct of the business and day to
day affairs of the said Accused No.1 Company.
***** ***** *****
11. That the aforesaid Cheque was issued by the
Accused No.1, in discharge of its legal liability through
its director accused No. 2 in respect of the availed
Facilities aggregating to INR 75,000,000/- (Rupees
Seventy Five Million only) by Accused No.1. The Accused
had issued the said cheque with malafide intention of not
getting the said cheque cleared/paid when presented for
encashment. The said cheque was returned by ICICI
Bank Ltd., C-17, C- Block Market, Vasant Vihar, New
Delhi-110057, as dishonoured with the remarks
"Account blocked". In this way, the Accused have
cheated the Complainant Bank intentionally and
deliberately. For the aforesaid act of the Accused No.1,
the Accused Nos. 2 to 8 are also liable as they are the
directors and responsible to the Accused No. 1 Company
for the conduct of the business and day to day affairs.
***** ***** *****
15. The Complainant submits that the Accused Nos. 1
to 8 had the dishonest intention from the very beginning
when the aforementioned Cheque was issued in favour of
the Complainant."
(underlining supplied)
8. Perusal of the complaint shows that it only states that the
petitioner (who was arrayed as accused No.4) is a director in the said
company. The allegation that the petitioner was in-charge and
responsible for the conduct of business are words that have been
simpliciter picked up from the wording of Section 141 of the Act. The
averment in paragraph 2 of the complaint shows that the contention
that the petitioner is in-charge and responsible for conduct of business
is premise solely on the basis that the petitioner is a director of the
said company.
9. In paragraph 11, once again the liability is sought to be fastened
on the petitioner solely on the ground that the petitioner is a director
and responsible to the company for conduct of its business. The
averments in paragraph 15 as noticed above are mere bald averments
without any basis being spelt out in the complaint.
10. The Supreme Court in SMS Pharmaceuticals vs. Neeta Bhalla
(2005) 8 SCC 89 has held that in order to bring the case within
Section 141 of the Act, the complaint must disclose necessary facts
which makes a person liable. It is necessary to specifically aver in the
complaint that at the time when the offence was committed the person
accused was in-charge of or responsible for conduct of the business of
the company. This averment is a necessary requirement of Section
141 of the Act and has to be made in the complaint.
11. As noticed above, the liability is sought to be fastened on the
petitioner solely on the ground that the petitioner is a director in the
company. Merely being a director does not make a person responsible
or in control of the company.
12. Even though assuming that the resignation of the petitioner was
not accepted as on the date when cheque was issued or dishonoured,
to my mind, the complaint does not disclose such facts as would show
that there is even an allegation that petitioner was in control or in-
charge or responsible to the company for the conduct of its business.
The averments in the complaint are merely reproduction of the
Section and nothing more.
13. As the complaint fails to disclose facts which show that the
petitioner was in-charge or responsible, to my mind, the complaint
lacks necessary ingredients that have to be pleaded. The Complain
does not satisfy the test as laid down in SMS Pharmaceuticals (Supra)
14. In view of the above, the summoning order cannot be sustained.
Accordingly, the same is set aside.
15. The petition is allowed in the above terms.
16. Order Dasti under signatures of the Court Master.
SANJEEV SACHDEVA, J
JANUARY 16, 2018/km
