Delhi High Court
Sanjit Amarjit Singh Oberai vs Indiabulls Financial Services ... on 13 April, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Pronounced on: 13th April, 2022
+ CRL.M.C. 1530/2020, CRL.M.As. 8217/2020 & 8218/2020
SANJIT AMARJIT SINGH OBERAI ..... Petitioner
Through: Mr. Yash Chaturvedi, Advocate
versus
INDIABULLS FINANCIAL SERVICES LTD ..... Respondent
Through: Mr. Ashish Sheoran and Ms. Smita
Bankoti, Advocates
+ CRL.M.C. 1531/2020, CRL.M.As. 8221/2020 & 8222/2020
SANJIT AMARJIT SINGH OBERAI ..... Petitioner
Through: Mr. Yash Chaturvedi, Advocate
versus
INDIABULLS FINANCIAL SERVICES LTD ..... Respondent
Through: Mr.Ashish Sheoran and Ms.Smita
Bankoti, Advocates
CORAM:
HON'BLE MS. JUSTICE ASHA MENON
JUDGMENT
1. These petitions have been filed under Sections 482 Cr.P.C. for
quashing of two complaints being complaint Nos.16416/2017 and
16412/2017 filed under Section 138 of Negotiable Instruments Act, 1881
(„N.I. Act‟, for short) qua two dishonoured cheques pending before the
learned Metropolitan Magistrate, Patiala House. Since the parties are the
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same and the pleas taken are materially the same, these two petitions are
being disposed of by this common order.
2. The respondent/Indiabulls Financial Services Ltd. instituted the
two complaints against Internet (India) Technologies Ltd. arrayed as
accused No.1 in the complaint they had filed under Section 138 of N.I.
Act. They also arrayed the Directors too as the accused in the said
complaint.
3. The stand taken by the petitioner in both the cases is that it was the
company that had availed the loan facility against the pledge of shares in
terms of the Loan-cum-Pledge Agreement dated 25th June, 2007, to the
extent of Rs.1,89,23,046/-, as on 20th July, 2008. Two cheques had been
issued by the accused/company bearing Nos.879266 & 879267 both dated
21st July, 2008 drawn on Bank of India, Mumbai, Main Branch, Mumbai
for Rs.50,00,000/- and Rs.32,04,401/- respectively in favour of the
respondent No.1 towards partial discharge of its liability. The cheques on
presentation with the HDFC Bank Ltd., Forte Branch, Mumbai, were
returned unpaid due to „insufficiency of fund‟ in the account of the
accused/company.
4. It is submitted by Mr. Yash Chaturvedi, learned counsel for the
petitioner, that the petitioner had resigned from the Directorship of the
Company and there was not one averment in the complaints, specifically
disclosing how the petitioner was a necessary party to the proceedings.
There was only a single sweeping averment in the complaint that the
accused Nos.1 to 4 are Directors of the accused/Company and hence were
responsible for the day-to-day functioning and affairs of the
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accused/Company. This, according to the learned counsel, did not meet
the requirements of Section 141 of the N.I. Act.
5. Reliance has been placed on the decision of the Supreme Court in
SMS Pharmaceuticals Ltd. Vs. Neeta Bhalla, (2005) 8 SCC 89, where, it
has been held that if a person, who was a Director of the
accused/Company, apart from the signatory and a Managing Director of a
company, was sought to be prosecuted, then, there has to be specific
averments in regard to the role played by that particular Director who is
sought to be prosecuted. Else the averment would not justify the
summoning of such a Director as an accused.
6. Reliance has also been placed on the judgments of the Supreme
Court in (i) Sabitha Ramamurthy & Ors. Vs R.B.S.
Channabasavaradhya (2006) 10 SCC 581, (ii) Saroj Kumar Poddar Vs.
State, (2007) 3 SCC 693, (iii) N.K. Wahi Vs. Shekhar Singh, (2007) 9
SCC 481 & (iv) N.S.I.C. Ltd. Vs. Harmeet Singh Paintal, (2010) 3 SCC
7. According to the learned counsel for the petitioner, the signatory of
the impugned cheques was Mr. Mahesh Jain, who is arrayed as accused
No.5 in the complaint. The petitioner had resigned from the company on
31st March, 2007, well before the cheques had been issued as also much
before the loan was sanctioned. Reliance has been placed on the
resignation letter placed on the record as Annexure-I. Hence, it was
prayed that the complaint case be quashed with regard to the petitioner.
8. A short reply has been filed by the respondent in both the matters.
The stand taken by the respondent and as submitted by the learned
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counsel for the respondent, is that the loan document had been signed by
the petitioner whose PAN Card details, were also duly furnished. It is
further submitted that the stand taken by the petitioner, that he was not a
Director at the time when the loan was availed of by the
accused/Company, was false. A copy of the loan agreement has been
placed on the record as Annexure R-2.
9. Further, it is submitted that the so-called resignation letter was not
supported by any Board Resolution nor Form 32 has been placed on the
record to prove the factum of resignation having been accepted by the
Company. No intimation had also been given to the respondent in
response to the legal notice issued to the accused, when the cheques were
dishonoured. Thus, it was submitted that this was only an attempt to
prolong the litigation and ought to be dismissed.
10. While it is correct that the courts have taken the view that a
Director of a company who was sought to be prosecuted must be assigned
a clear role in the commission of the offence, this is not a case where the
mere claim of the petitioner that he had resigned as a Director well ahead
of the sanctioning of the loan can be accepted at face value. It is not a
case where the documents produced by the petitioner is of such sterling
quality that the court would be prompt in accepting the stand of the
accused, to hold that to continue proceedings against him would be an
abuse of the process of the court.
11. In the first place, the „Registration Kit Loan Against Shares‟ placed
on the record as Annexure R-2, lists out the Full Time Directors of the
Company at page 12 of the e-file and the petitioner has been named as
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one such Full Time Director. Had he resigned before the execution of the
said document, why would his name be included? If the petitioner has an
explanation, he can offer it but only at his turn, during trial. The
document, it may be noted once again, is signed on 25th June, 2007. It
includes details of the petitioner‟s documents. His shareholding has also
been disclosed i.e. that the petitioner is holding 300 shares. It would be
for him to prove during trial that such a shareholding did not allow him to
conduct the business of the Company or that despite being a Full Time
Director, he had no say in the conduct of the Company‟s business.
12. Secondly, the claim of the resignation is founded on a letter placed
on the record as Annexure-I, which reads as under :
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13. It is addressed to the Board of Directors. It only bears an
endorsement of receipt by some undisclosed person. There is nothing to
show that the resignation has been accepted. No Board Resolution has
been annexed nor has a certified copy of Form 32 filed with the Registrar
of the Companies been placed on the record. Thus, prima-facie without
proof that such a letter had been written on the date stated on the letter
and in the absence of evidence of statutory compliance for the acceptance
of the resignation and change in the constitution of the Board of
Directors, no credibility can be attached to this so-called letter of
resignation to exonerate the petitioner from criminal liability.
14. There is no merit in the present petitions. The same are dismissed
alongwith the pending applications with cost of Rs.10,000/- in each
petition, to be deposited with the "Saket Bar Association Welfare Fund"
[Account No.32895685000, SBI Bank, Saket Courts], within a week. The
receipts be filed in the Registry.
6. In the event, the receipts are not filed within the date fixed, the
Registry is directed to place these matters again before the court.
15. Copy of this order be sent to the learned Trial Court.
16. The judgment be uploaded on the website forthwith.
(ASHA MENON)
JUDGE
APRIL 13, 2022
ck
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