MOHIT SHAH Vs. STATE

JUDGEMENT

(1.) The present application under Sec. 482 of Code of Criminal Procedure, 1973 (hereinafter "Cr.P.C.") has been filed by the petitioner seeking quashing of summons issued against him by the Court of learned Metropolitan Magistrate-01, New Delhi District, Patiala House Courts, New Delhi vide order dtd. 19/2/2019 in Complaint Case No. 4825/2019 filed under Ss. 138/141 of the Negotiable Instruments Act, 1881 (hereinafter "NI Act, 1881").

(2.) The brief facts of the case are that on 5/4/2018, the accused Company i.e. M/s Ashapura Intimates Fashion Ltd. (hereinafter "Company") borrowed a loan of Rs.1,00,00,000.00 (Rupees One Crore Only) from respondent no. 2 in the form of an Inter Corporate Deposit through an RTGS Transfer for a period of 124 days @ 13 per cent per annum. Three post-dated cheques, signed by the Managing Director, of amounts Rs.3,97,480.00 (interest), Rs.50,00,000.00 (principal) and Rs.50,00,000.00 (principal) were issued by the Company in view of the said deposit. The interest amounting to Rs.3,97,840.00 on the abovestated principal amount was realised by respondent no. 2 on 6/8/2018 whereas, upon request from Company, an extension of the loan term was made on similar terms and conditions as made earlier. Thereafter,three Post Dated Cheques, which are in dispute, signed by the Managing Director of the Company were issued against the said loan amount on 6/8/2018. The details of these cheques are as follows: Cheque bearing No. 939494, 939493 and 939492 for Rs.

(3.) ,84,657/- (interest), Rs.50,00,000.00 (principal) and Rs.50,00,000.00 (principal) respectively, dtd. 5/12/2018, drawn on State Bank of India. Thereafter, upon completion of the term of deposit, respondent no. 2 deposited the said cheques with their bankers i.e. ICICI Bank, Janpath Branch, New Delhi, but the same were returned by their bank with a remark "Funds Insufficient" which was confirmed to respondent no. 2 by its Banker vide returning Memos dtd. 14/12/2018. On 3/1/2019, a legal notice of demand under Sec. 138 of NI Act, 1881 was sent to the accused persons at their office and residential addresses calling upon them to pay and clear a sum of Rs. 1,03,84,657/- (Rupees One Crore Three Lacs Eighty Four Thousand and Six Flundred Fifty Seven Only) within 15 days. On 16/2/2019, the respondent no. 2 moved the Court of learned MM, Patiala House Courts and initiated the Criminal Complaint under Sec. 138 of NI Act, 1881against the Company, its directors, as well as CEO and CFO, and the case came up for hearing before the learned Court on 19/2/2019. The summons as issued by the learned Trial Court vide order dtd. 19/2/2019 were served to the petitioner herein on 31/8/2019, directing him to appear before the learned Trial Court on 15/10/2019. 3. The case of the petitioner before this Court is that he was employed on 11.08.2016as the Chief Executive Officer of the Company at its head office at Dadar, Mumbaion a monthly salary of Rs.2,25,000..00 As per his employment letter, the petitioner was to report to Mr. Harshad Thakkar, the Managing Director, and his job was to manage the retail vertical of the Company. The loan in the form of Inter Corporate Deposit, as stated above, was obtained by the Company and cheques in that respect were issued by the Managing Director. It is stated that on 3/10/2018, the Managing Director of the Company went missing and a missing report was registered at the Police Station Dadar, Mumbai, Maharashtra on 3/10/2018. It is further averred that the petitioner vide a letter dtd. 25/10/2018 to Sh. Dinesh Sodha, Director of the Company, resigned from the post of the Chief Executive Officer and the said letter was duly received by the directors of the Company. However, vide an e-mail correspondence dtd. 22/11/2018, Sh. Hitesh Punjani (HR) refused to accept the resignation of the petitioner and requested him to extend his exit. On an oral discussion, it was stated that the resignation of the complainant would be accepted once the ROC compliance in regard to the petitioner's resignation are complete. Thereafter, the petitioner wrote several correspondences to Sh. Hitesh Punjani and other directors, requesting them to complete the ROC compliance but the same was delayed by the Directors of the Company by way of no reply or a reply requesting to postpone the resignation, as per the case of petitioner. Thereafter, the cheques in dispute were dishonored on 14/12/2018 and complaint was filed before the Court. It is stated that on 25/2/2019, Sh. Hitesh Punjnani one of the directors who played a pivotal role in delaying the exit of the petitioner herein by postponing the acceptance of the resignation of the petitioner dtd. 25/10/2018, on one pretext or another, himself resigned from the post of the Director after completing all the compliance in regard to his resignation with the Registrar of Companies. After that on 11/3/2019, petitioner, (on finding out about the resignation of Sh. Hitesh Punjnani, Director and the intentions of Sh. Dinesh Shodha to resign from the post of Director), vide his letter dtd. 11/3/2019 to the Board of Director resigned from the post of CEO with the immediate effect. On 18/3/2019, Sh. Dinesh Shodha also resigned from the post of Director of the Company after completing all the ROC compliance in regard to his resignation. It is also the case of petitioner that on 29/3/2019, he requested the Directors and Other Responsible Persons (Previous Directors) of the Company to release his pending salary from 1/2/2019 to 11/3/2019. However, on 28/6/2019, the Company went into liquidation and on invitation of claims by the learned IRP, the same was filed by the petitioner before the NCLT vide a Declaration dtd. 15/7/2019.