Col Ram Kishan Budhwar vs M/S Swift Securities
2019 Latest Caselaw 5985 Del

$~10
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                Date of decision: 26.11.2019

+      CRL.M.C. 1249/2017 & CRL.M.A. 5138/2017

       COL RAM KISHAN BUDHWAR                              ..... Petitioner
                          Through      Ms. Pooja B Soni, Adv.

                          versus


       M/S SWIFT SECURITIES                                ..... Respondent
                          Through      Ms. Prabha Mishra

       CORAM:
       HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                          J U D G M E N T (ORAL)

1. By way of the instant petition, petitioner seeks directions thereby to

set aside the order dated 10.03.2016 passed by the ld. Metropolitan

Magistrate, North-West, Rohini- Delhi in Criminal Complaint no. CC

389/1/16.

2. The present case has been filed on the ground that the learned Trial

Court has failed to appreciate the fact that neither any specific averment has

been made in the complaint that at the time when offence was committed the

petitioner was either in charge of the respondent no. 4 or responsible for the

conduct of the business of the accused no.4 which is the company nor any

material is adduced on record on the basis of which the petitioner could have

been summoned in the complaint initiated by the respondent no.1.

3. Learned counsel for the petitioner submits that in para 12 of the

complaint, in order to implicate the petitioner, the respondent no.1

/complainant has only made an averment that the accused no. 1 is a

company incorporated under Indian Companies Act and accused no. 2 and 4

are its Directors and are responsible as well as authorized to incur the

liability of dishonouring of the cheque, therefore, also liable as per Section

141 of the Negotiable Instrument Act. Beyond this, no role, much less any

specific role, has been assigned in the entire complaint and the entire

complaint is completely conspicuously silent about any role being played by

the petitioner in the alleged transactions.

4. Learned counsel for the petitioner further submits that the learned

Trial Court has failed to appreciate the fact that neither the petitioner has

played any role in the transaction in question nor any averments to this

effect has been made by the respondent no.1/ complainant in the complaint.

Neither the petitioner signed/executed any document with the respondent

no.1 nor the petitioner ever dealt with the respondent no. 1 company. The

cheque in question is also not signed/ issued by the petitioner. As per the

documents produced by the respondent no.l company, it was the respondent

no.2 who apparently entered into the transaction with the respondent no.l

company and signed the documents/agreement pertaining to the transaction

which is reflecting in the complaint filed by the respondent no.1. Further, the

agreement in question pertains to the year 2008 and the petitioner resigned

as Director of respondent no.4 Company in the month of June, 2015. To this

effect, a resolution has been passed, copy whereof has been annexed with

this petition at page 132, which substantiates that the resignation of

petitioner was accepted by the respondent no.4 company with effect from

09.06.2015.

5. On the other hand, learned counsel for the respondent no.1 company

submits that on 01.10.2011 a loan agreement was signed between

respondent no.1 and respondent no.4 companies and the petitioner was one

of the Directors in respondent no.4 Company but he resigned on 09.06.2015,

however, there was no notice to this effect and thus, the respondents had no

knowledge about resignation of the petitioner. Therefore, he has been

impleaded in the complaint.

6. The fact remains that the agreement was entered between respondent

no.1 and respondent no.4 companies in the year 2011 to provide finances

and thereafter a cheque for an amount of ₹92,89,243/- was issued on

01.10.2015 whereas, as per the facts noted above, the petitioner had already

resigned on 09.06.2015, which was much before the issuance of cheque in

question, which is also evident from the resolution of respondent no.4

company.

7. In view of the above stated facts, this Court is of the considered view

that the petitioner is not guilty of the offence punishable under Section 138

NI Act. Therefore, I hereby set aside the impugned order dated 10.03.2016

passed by the Trial Court and proceedings pending before it qua the

petitioner only.

8. The petition stands disposed of accordingly.

Order dasti.

(SURESH KUMAR KAIT) JUDGE NOVEMBER 26, 2019 sm