P P MARINA Vs. STATE

JUDGEMENT

(1.) The petitioner by way of present petition prays quashing of the criminal complaint bearing CC No. 3864/ 11 under Section 138 of the Negotiable Instruments Act (hereinafter referred to as "Act"), titled "Countrywide Promoters Pvt. Ltd. V. Era Landmarks Ltd. & Ors" and the summoning order dated 01.03.2011 and all proceeding arising there from.

(2.) The brief facts necessitating the disposal of the present petition are that the accused company in which the petitioners were directors, entered into an MOU with the Complainant Company/ respondent no. 2 for development of certain land in Haryana. Pursuant to the MOU, a Development Rights Agreement dated 13.04.2007 was entered into between the parties and subsequently a Share Purchase Agreement dated 05.05.2008 for transfer of the agreed land was entered into between the parties. The accused company vide letter dated 14.08.2010 communicated to the complainant company / respondent no. 2, that an amount of Rs. 2458.39 Lacs shall be paid by the complainant company/ respondent no. 2 as External Development Charges to the Government Department on behalf of the accused company, which shall be repaid by the accused company along with 18% interest to the complainant company / respondent no. 2. It is alleged that, in lieu of part payment of the aforesaid liability of 2458.39 Lacs, post dated cheques bearing cheque no. 291473 dated 31.12.2010, cheque no. 291474 dated 31.12.2010, cheque no. 291477 dated 31.12.2010 and cheque no. 291476 dated 31.12.2010 of the amounts Rs. 500 Lacs, Rs. 500 Lacs, Rs. 229.195 Lacs and Rs. 74.196 Lacs respectively totalling to Rs. 13,03,39,100/-, were handed over by the accused company to the complainant company/ respondent no. 2 on 14.08.2010 itself. The cheques were presented for encashment on 07.01.2011. However, they were returned unpaid by the complainant company / respondent no.2's banker vide return memo dated 08.01.2011 stating the reason as "payment stopped by the Drawer". The complainant company / respondent no. 2 sent a demand notice to the accused company vide letter dated 17.01.2011 demanding the payment of the aforesaid amount of Rs. 13,03,39,100. The accused company replied to the demand notice, stating that the aforesaid cheques were handed over to the complainant/ respondent no. 2 merely as security and not for the satisfaction of any debt or liability. On non-payment of the aforesaid amount, a complaint dated 09.02.2011 was filed in the court of Ld. MM under Section 138 of the Act. After recording the pre-summoning evidence of the complainant, the Ld. MM issued summons to the accused company along with its directors, holding them vicariously liable under section 141 of the Act. The present petitioners were also the Directors of the accused company. The petitioners have invoked the power of this court under section 482 CrPC, seeking quashing of the complaint, summoning order and all proceeding arising therefrom.

(3.) The learned counsel for the petitioners submitted that at the time of commission of the alleged offence the petitioners had ceased to be directors of the accused company. Form 32 of the petitioners' evidences that the petitioner no. 1 ceased to be a director of the accused company on 12.11.2009, petitioner no. 2 ceased to be a director on 05.01.2011 and petitioner no. 3 also ceased to be a director on 05.01.2011. The dishonoured cheques were presented on 07.01.2011 and the demand notice was sent to the accused company on 17.01.2011.It is submitted that, an offence under section 138 of the Act is completed on non-payment of the cheque amount, after the expiry of the statutory period of 15 days from the date of receiving the demand notice. It is submitted that the present petitioners had ceased to be directors of the accused company at the time of the commission of the alleged offence, hence they cannot be held vicariously liable for an offence committed by the accused company. It is also submitted that none of the petitioners was a signatory to the dishonoured cheques. It is also contended that the dishonoured cheques were issued as security and not against any existing debt or liability incurred by the petitioners or the accused company.