SWASTIK POLYVINYLS LTD Vs. B M GUPTA

JUDGEMENT

(1.) Three criminal miscellaneous petitions bearing Nos. Crl. M.C. Nos. 2726/2013, 2730/2013 and 2731/2013 under Section 482 of Code of Criminal Procedure, 1973 have been filed for quashing the order dated 10th April, 2013 passed by learned Additional Sessions Judge whereby Criminal Revision No. 20/2013 filed by respondent No. 1-3 was allowed.

(2.) The factual matrix of the case leading to the filing of the present petitions are that the petitioner Company has been carrying out the business of rubber/plastic compound and master batches for cable, footwear and automobiles and in the normal course of its business had despatched/supplied PVC compound on various dates to M/s Brimson Cables Private Limited, of which respondent Nos. 1-3 are Directors. The company admitted its liability as on 31st March, 2011 by issuing confirmation of accounts to the petitioner Company on 1st April, 2011 and towards part payment/partial discharge of its legal liability issued cheques under the signature of Sh. Hardesh Gupta as director of the company. On presentation, the cheques were returned unpaid for the reasons "exceeds arrangement" whereafter the petitioner company issued legal notice to the company and all its four directors. However, the company and its directors did not pay the amount despite service of legal notice. There upon, the petitioner company filed criminal complaint dated 16th November, 2011 under Section 138 read with Sections 141 and 142 of Negotiable Instruments Act, 1881. Vide order dated 24th December, 2011 the learned Metropolitan Magistrate summoned the company and all the four directors including respondent Nos. 1-3. Respondent Nos. 1-3, herein, filed criminal revision dated 17th December, 2012 against the order of summoning dated 24th December, 2011 on the plea that they had nothing to do with the alleged offence as they had neither issued the cheques to the petitioner company nor had placed any purchase order for purchasing the goods. The criminal revision petition was allowed by the learned Additional Sessions Judge vide order dated 10th April, 2013.

(3.) This order has been challenged, inter alia, on the ground that in the case of K.K. Ahuja v. V.K. Vohra and Another, 2009 9 Scale 87 Hon'ble Supreme Court has held that the averment in a complaint that an accused is a director and that he is in charge of and is responsible to the company for the conduct of the business of the company, duly affirmed in the sworn statement, may be sufficient for the purpose of issuing summons to him. Relying upon the judgment of K.K. Ahuja in the case of Krishna Murari Lal v. IFCI Factors Limited, 2012 10 AD(Del) 539 and Susanna Jacob v. Pyroguard Engineers Private Limited and Others, 2012 9 AD(Del) 173, High Court held that in view of specific averments made in the complaint and the fact that the petitioner was admittedly a director of the company, a presumption under Section 141 of N.I Act would have to be drawn against the petitioner. However, the presumption is rebuttable one, but evidence to the contrary would have to be led by the petitioner. The petitioner company has led pre-summoning evidence by filing duly sworn affidavit of CW1 clearly reiterating the averments set out in the complaint, which were sufficient at this stage for summoning the company and the directors. The learned Metropolitan Magistrate has rightly summoned the respondents. The summoning order do not suffer from any infirmity, as such, it was prayed that the impugned order dated 10th April, 2013 passed by learned Additional Sessions Judge be set aside and the order dated 24th December, 2011 summoning respondent Nos. 1-3 be restored.