Punjab-Haryana High Court
Anil Gupta vs M/S. Ram Ditta Mal Surinder Kumar And Anr on 8 July, 2024
Author: Karamjit Singh
Bench: Karamjit Singh
Neutral Citation No:=2024:PHHC:086525
CRM-M-14339-2019 (O&M) [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-14339-2019 (O&M)
Reserved on 02.05.2024
Date of decision: 08.07.2024
Anil Gupta ...Petitioner
Versus
M/s Ram Ditta Mal Surinder Kumar and another ...Respondents
CORAM: HON'BLE MR. JUSTICE KARAMJIT SINGH
Argued by: Mr. Aashish Chopra, Sr. Advocate with
Mr. Gagandeep Singh, Advocate for the petitioner.
None for the respondents.
****
KARAMJIT SINGH, J. (ORAL)
1. The instant petition has been filed by the petitioner under
Section 482 Cr.P.C. for quashing of impugned complaint bearing
No.598/2017 dated 01.07.2017 titled as M/s Ram Ditta Mal Surinder
Kumar, Commission Agent and another Vs. Amira Pure Foods Private
Limited and others (Annexure P-1) under Section 138 of Negotiable
Instruments Act (in short NI Act) pending in the Court of Judicial
Magistrate Ist Class, Kurukshetra including all proceedings emanating
therefrom including summoning order dated 01.09.2017 (Annexure P-3)
and order dated 08.10.2018 (Annexure P7) whereby the petitioner was
declared as proclaimed person by the learned trial Court in the impugned
complaint.
2. The brief facts of the case are that respondent No.1 and its
proprietor namely respondent No.2 namely Surinder Dhingra filed
complaint (Annexure P-1) against the petitioner and other accused persons
wherein it was alleged that accused Nos.2 to 8 are directors of accused No.1
Amira Pure Foods Private Limited. That accused purchased paddy from
respondents No.1 and 2 on credit basis and later on, made part payment.
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That accused issued cheque bearing No.360040 amounting to Rs.8,95,395/-
dated 19.01.2017 and cheque bearing No.360039 amounting to
Rs.8,00,000/- dated 23.03.2017 in order to discharge their legal liability.
Both the said cheques were signed by accused No.7 Ms. Aparna Puri on
behalf of the company and other directors including the petitioner. On
presentation of both the cheques, they were dishonored with remarks
'insufficient funds' vide memos dated 19.04.2017, which were received by
respondents No.1 and 2 on 20.04.2017. That accused persons also issued
another cheque bearing No.360097 amounting to Rs.1,40,400/- dated
04.05.2017. Even the said cheque on its presentation was dishonored vide
memo dated 12.05.2017 with remarks 'insufficient funds'. Thereafter, legal
notice under Section 138 NI Act dated 19.05.2017 was served upon the
accused persons. However, the accused persons failed to respond to the said
legal notice within a stipulated period. On this, impugned complaint
(Annexure P-1) dated 01.07.2017 was instituted by respondents No.1 and 2
against the accused company and its directors including the petitioner
alleging that accused No.2 to 8 are directors of accused No.1 i.e. Amira
Pure Foods Private Limited and are incharge and responsible for the day to
day working, functioning and conduct of the business of the company.
3. The learned trial Court after recording the preliminary
evidence, summoned the accused company and its directors including the
present petitioner vide order (Annexure P-3) dated 01.09.2017. That
subsequently, petitioner and other directors were declared as proclaimed
persons by the learned trial Court vide order dated 08.10.2018
(Annexure P-7).
4. The petitioner has filed the present petition seeking quashing of
impugned complaint (Annexure P-1), summoning order (Annexure P-3) and
order (Annexure P-7) whereby he was declared as proclaimed person by
the trial Court.
5. Notice of motion was issued, but respondents No.1 and 2 i.e.
complainants failed to respond to said notice despite their due service.
6. The learned senior counsel while impugning complaint
(Annexure P-1), summoning order (Annexure P-3) as well as the
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consequential proceedings arising therefrom has inter alia contended that
learned trial Court had mechanically taken cognizance as against the
petitioner, when there is absolutely no specific allegations in a complaint
(Annexure P-1) against the petitioner as to how and in what manner he was
responsible for the conduct of the business of the company. It has been
further contended that petitioner was not signatory to the cheques in
question and actually the petitioner had resigned as director of M/s Amira
Pure Foods Private Limited and his resignation was accepted w.e.f.
21.01.2016 whereas the cheques in question had been issued much later i.e.
19.01.2017, 23.03.2017 and 04.05.2017. The learned senior counsel has
further argued that since the petitioner had already resigned as a director of
the company vide (Annexure P-8), much prior to issuance of cheque in
question and commission of offence under Section 138 NI Act, the
petitioner could not be held vicariously liable for the actions of the
company by invoking provision of Section 141 NI Act. It has been further
contended that when the cheques in question were issued and subsequently,
dishonored on their presentation, the petitioner was neither incharge nor
responsible for the day to day affairs of the company. The senior counsel for
the petitioner has further contended that the continuance of the impugned
complaint (Annexure P-1) and all the subsequent proceedings arising
therefrom would amount to misuse of the process of Court and that of law.
In order to substantiate his contention, the counsel for the petitioner has
placed reliance on the judgment of Hon'ble Supreme Court in Pooja
Ravinder Devidasani Vs. State of Maharashtra 2014 (16) SCC 1 and
decision of co-ordinate Bench of this Court in CRM-M-34710-2019 titled as
Anil Gupta Vs. Pawan Kumar, decided on 03.05.2024.
7. I have considered the submissions made by senior counsel for
the petitioner.
8. The impugned complaint (Annexure P-1) has been filed by
respondents No.1 and 2 against accused No.1 Amira Pure Foods Private
Limited and accused Nos.2 to 8 who were stated to be its directors. The first
accused is admittedly a company. As per the allegations in the complaint,
the cheque in question was signed by accused No.7 Ms. Aparna Puri being
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director/authorized signatory of accused No.1 company.
9. To attract the offence under Section 141 of NI Act, the primary
responsibility on the complainant is to make specific averments as required
under the law in the complaint so as to make the accused vicariously liable
for fastening criminal liability.
10. The Hon'ble Supreme Court in SMS Pharmaceuticals Vs.
Neeta Bhalla (2007) 4 SCC 70 held that merely because a person is a
director of a company, it is not necessary that he is aware about the day to
day functioning of the company. It was further held that there was no
universal rule that a director of a company is incharge of its everyday
affairs. It was therefore necessary, to aver as to how the director of the
company was incharge of day to day affairs of the company or responsible
to the affairs of the company.
11. The aforesaid view was reiterated by the Hon'ble Supreme
Court in National Small Industries Corporation Limited Vs. Harmeet
Singh Paintal and another 2010 (3) SCC 330 and Pooja Ravinder
Devidesani's case (supra).
12. In National Small Industries Corporation Limited's case
(supra), the Hon'ble Apex Court also held as follows:-
"26) Apart from the legal position with regard to compliance of
Section 141 of the Act, in the appeals of National Small Industries
Corporation, respondent No.1- Harmeet Singh Paintal was no
more a Director of the company when the cheques alleged in the
complaint were signed and the same is evidenced from the Sixth
Annual Report for the year 1996-97 of the accused company. The
said report is of dated 30.08.1997 and the same was submitted with
the Registrar of Companies on 05.12.1997 and assigned as
document No. 42 dated 09.03.1998 by the Department. Those
documents have been placed before this Court by respondent No.1
as an additional document. In view of these particulars and in
addition to the interpretation relating to Section 141 which we
arrived at, no liability could be fastened on respondent No.1.
Further, it was pointed out that though he was an authorized
signatory in the earlier transactions, after settlement and in
respect of the present cause of action, admittedly fresh cheques
were not signed by the first respondent. In the same way, in the
appeal of the DCM Financial Services, the respondent therein,
namely, Dev Sarin also filed additional documents to show that on
the relevant date, namely the date of issuance of cheque he had no
connection with the affairs of the company.
27) In the light of the above discussion and legal principles, we are
in agreement with the conclusion arrived at by the High Court and
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in the absence of specific averment as to the role of the
respondents and particularly in view of the acceptable materials
that at the relevant time they were in no way connected with the
affairs of the company, we reject all the contentions raised by
learned counsel for the appellants. Consequently, all the appeals
fail and are accordingly dismissed."
13. Now reverting back to the facts of the case on hand, a perusal
of copy of form No.DIR-11 (Annexure P-8) reveals that petitioner had
resigned as director of accused No.1 a company w.e.f. 21.01.2016. This fact
has not been refuted by the respondents No.1 and 2, who failed to turn up
despite their due service in the present petition. Further, form No.DIR-11 is
a official document which comes under public domain and is free from
suspicion and can be relied upon even at the prima facie stage. Thus, it is
evident that at the time when cheques in question were issued and
subsequently, dishonored the petitioner was having no connection with the
affairs of the company and had already severed all ties with the company.
14. In light of the above, in order to secure ends of justice and to
prevent the abuse of process of Court, sufficient grounds are made out to
interfere in this matter under Section 482 Cr.P.C.
15. Given the aforementioned facts and circumstances and the
settled position of law, criminal proceedings commenced under Section 138
of NI Act in the present case deserve to be quashed along with all the
subsequent proceeding arising therefrom qua the present petitioner.
Accordingly, the present petition is allowed and complaint NACT No.598-
2017 dated 01.07.2017 titled as M/s Ram Ditta Mal Surinder Kumar
Commission Agents and Another Vs. Amira Pure Foods Private Limited
and others (Annexure P-1) filed under Section 138 of NI Act and the
summoning order dated 01.09.2017 (Annexure P-3) and all the subsequent
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proceedings emanating therefrom including order dated 08.10.2018
(Annexure P-7) are hereby quashed qua the present petitioner. However, it
is made clear that any observation made herein above shall not be construed
as an expression of opinion on the merits of the case qua the other accused
persons.
16. Pending application(s), if any, stand disposed of.
08.07.2024 (KARAMJIT SINGH)
YOGESH JUDGE
Whether speaking/reasoned:- Yes/No
Whether reportable:- Yes/No
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