Madhya Pradesh High Court
Sengodagounder Asithambi vs G.S. Cotton Fiber Chopda Through ... on 19 December, 2023
Author: Vivek Rusia
Bench: Vivek Rusia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 19 th OF DECEMBER, 2023
MISC. CRIMINAL CASE No. 37409 of 2023
BETWEEN:-
1. SENGODAGOUNDER ASITHAMBI S/O SHRI
KARUPANNA GOUNDER SENGODAGOUNDER
OCCUPATION: BUSINESS ADDITIONAL DIRECTOR
JAI INDIA WEAVING MILLS PVT.LTD. R/O 101
TIRUCHENGODE ROAD PALLIPALAYAM
NAMAKKAL DISTT. 638006 (TAMIL NADU)
2. RAMNATHAN ANITHA S/O SHRI RAMANATHAN
OCCUPATION: BUSINESS 3/279, NAVAKKADU
AGRAHARAM, PALLIPALAYAM, (TAMIL NADU)
3. ASAITHAMBI KAVITHA S/O SHRI SENGOTTUVEL
OCCUPATION: BUSINESS 101, TIRUCHENGODE
ROAD PALLIPALAYAM, NAMAKKAL, (TAMIL
NADU)
.....APPLICANT
(BY SHRI SATYENDRA KUMAR VYAS, SENIOR ADVOCATE ASSISTED BY
MS. NEHA YADAV, ADVOCATE)
AND
G.S. COTTON FIBER CHOPDA THROUGH PROPRIETOR
SHRI ASHUTOSH S/O SHRI ASHOK MANGAL
OCCUPATION: BUSINESS R/O CHOPDA NIWASI SADAR
BAZAR SENDHWA DISTT. BARWANI (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI VIMAL KUMAR GANGWAL, ADVOCATE)
This application coming on for admission this day, the court passed the
following:
ORDER
The applicants have filed the present M.Cr.C. under Section 482 of the
Code of Criminal Procedure, 1973 seeking quashment of proceedings of
complaint case registered as SC-NIA No.20/2020 pending before the Judicial
Magistrate First Class, Sendhwa.
02. Respondent, being a complainant filed a private complaint under
Section 138 of the Negotiable Instruments Act against these applicants and
three others. According to the complaint, he is engaged in the business of
ginning and pressing of cotton in Sendhwa.Mai India Viving Mills Private
Limited is company registered under the provisions of the Companies Act,
1956. Balu Deivanai is the Managing Director and remaining 3 to 6 are
Directors, hence, they have been made accused in this case.
03. According to the complainant, on 15.11.2018, the accused purchased
243.40 quintal cotton in Rs.33,92,089/-, out of which Rs.21,01,394/- was paid
and for remaining Rs.12,90,695/-, a cheque of Rs.10,00,000/- dated 02.05.2019
was issued which was presented in the bank for encashment but the same
returned unpaid due to insufficient fund. Thereafter, a legal notice was sent, but
no reply was given, hence, the complaint was filed on 22.10.2019.
04. The present applicants after receipt of summons did not appear
before the Magistrate and directly approached this Court by way of petition
under Section 482 of the Cr.P.C. only on the ground that they have been
implicated as accused only on the basis that they are Directors. They were not
responsible for day to day conduct of the business as pleaded in the complaint
case by the complainant himself. Hence, the compliant proceedings are liable to
be quashed and they be discharged.
05. Shri Vyas, learned Senior Counsel for the applicants has placed
reliance upon a judgment delivered by the Apex Court in the case of National
Small Industries Corporation Limited v/s Harmeet Singh Paintal &
Another reported in (2010) 3 SCC 330, in which the Apex Court has held that
not every person connected with the company but only those in charge of and
responsible for conduct of business of the company at the time of commission
of offence is vicariously liable under Section 138 of the Negotiable Instrument
Act.
06. Shri Gangwal, learned counsel for the respondent submits that
admittedly the applicants are Director of the Company who has withheld the
amount of Rs.12,90,695/- and instead of participation in the complaint case,
they are watching the proceedings from the outside. Till date, none of the
accused persons appeared before the trial Court and avoiding the trial,
therefore, the present M.Cr.C. be dismissed and they be given an opportunity
to submit objection before the trial Court.
07. It is correct that the present applicants have been made accused being
the Directors of the Company, but who was actually involved in day to day
business of the Company is a matter of trial. The applicants did not send reply
to the legal notice denying their involvement in day to day affairs of the
Company. The complainant who is the small businessmen of Sendhwa is not
supposed to know that which Director is responsible for day to day affair and
has control over the Company. It is the matter of evidence and trial that who
was actually in charge of the Company at the time of issuance of cheque. At
present, the applicants neither filed reply to the legal notice nor appeared before
the trial Court with plausible defence. The complaint is pending since 2019 and
despite having knowledge, neither the Managing Director or any of the Director
have appeared before the trial Court. They have not even deposited the interim
compensation payable to the complainant under Section 143-B of the
Negotiable Instruments Act, therefore, in order to protect the interest of small
businessman, no case for interference is made out for quashment of complaint
case at this stage.
08. In view of the above, M.Cr.C. stands dismissed.
(VIVEK RUSIA)
JUDGE
Ravi
