Gauhati High Court
Dibya Deepam Sarma vs M/S V-Mart Retail Limited And 2 Ors on 3 May, 2023
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GAHC010075702023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : W.P.(Crl.)/16/2023
DIBYA DEEPAM SARMA
S/O NARENDRA NATH SARMA, R/O 2 NO. MADGHARIA, LAKHIMI MANDIR
PATH, HOUSE NO. 66, P.S.-NOONMATI, GUWAHATI, DIST-KAMRUP (M),
ASSAM, PIN-781020
VERSUS
M/S V-MART RETAIL LIMITED AND 2 ORS
REGISTERED OFFICE AT 610-611 GURU RAM DASS NAGAR, MAIN
MARKET OPPOSITE LAXMI NAGAR NEW DELHI-110092, CORPORATE
OFFICE AT PLOT NO. 862, UDYOG VIHAR, INDUSTRIAL AREA, PHASE-V,
GURUGRAM-122016, HARYANA THROUGH AUTHORISED
REPRESENTATIVE MR. KESHAV KUMAR, AGED 50 YEARS, S/O JAGANATH
JHA
2:THE SUPERINTENDENT OF POLICE
GURUGRAM DISTRICT
HARYANA
3:THE OFFICER INCHARGE
GURUGRAM POLICE STATION
DIST-GURUGRAM
HARYAN
Advocate for the Petitioner : MR. R SARMA
Advocate for the Respondent :
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BEFORE
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
ORDER
03.05.2023
Heard Mr. R. Sarma, learned counsel for the petitioner.
2. This petition is filed by the petitioner challenging the proceeding initiated under
Criminal Complaint No. 42978/2022 in which the Court of Judicial Magistrate, 1 st Class,
Gurugram, Haryana has taking cognizance and has issued summons as well as NBWA
against the petitioner.
3. It is submitted that the petitioner is arrayed as the accused No. 3 in the said
matter. The learned counsel for the petitioner submits that the proceedings were
initiated by the respondent company under Section 138 of the NI Act and it is alleged
that a cheque of Rs. 5,76,262/- vide cheque No. 111890 dated 05.03.2022 which was
issued by the company in which the petitioner was earlier employed in favour of the
respondent company, was returned by the Bank with the endorsement of insufficient
fund. Accordingly, the proceedings were initiated by the respondent No. 1/complainant
before the concerned Court having competent jurisdiction. The learned counsel for the
petitioner submits that he had already tendered his resignation from the company well
prior to issuance of the cheque and the company in which he was working has already
issued a certificate to that effect. (Annexure-2, Page-32 of the writ petition). The
learned counsel for the petitioner submits that under the circumstances, he is no way
connected with the allegations made in the complaint petition as he was not employed
in the said company at the relevant point in time. That apart, he was not associated
with the day to day business with the company and as such the initiation of
proceedings and issuance of summons by the learned Court of JMFC, Gurugram is
wholly uncalled for and opposed to the law laid down by the Apex Court. Mr. Sharma
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has referred to the Judgment of the Apex Court in Sunita Palita and Ors. Vs.
Panchami Stone Quarry, reported in (2022) 10 SCC 152 wherein Apex Court has
held that unless it is shown that the Director concerned was entrusted with day to day
activities of the business of the concerned, merely by the fact that he is a Director
does not make irresponsible for an offence Under Section 138 NI Act.
4. Having heard the learned counsel, this Court is of the view that the matter will
require consideration. In the meantime, let Notices be issued, Returnable in four
weeks.
5. Steps be taken on respondents by registered post with A/D within a period of
one week from today.
6. As it is submitted that the next date fixed in the matter is 28.07.2023, the
prayer for stay of the proceedings will be considered on the next returnable date.
7. However, the NBWA issued in so far as the petitioner is concerned in connection
with Criminal Complaint No. 42978/2022 by the Court of JMFC, Gurugram, Haryana
shall remain stayed.
8. Let the matter be listed again on 12.06.2023.
JUDGE
Comparing Assistant
