BINA JAIN Vs. STATE

JUDGEMENT

(1.) By way of the present petition filed under Sec. 482 of the Code of Criminal Procedure, 1973 (hereinafter 'Cr.P.C.'), the petitionersseek quashing of summoning order dtd. 22/10/2018 passed by learned Metropolitan Magistrate (NI Act)-02, Patiala House Courts, New Delhi in Criminal Complaint No. 15254/18 titled as 'S.A. Consultants and Forwarders Pvt. Ltd. vs. M/s Cargo Planners Private Limited and Ors.' and all its consequent proceedings, so far as it relates the petitioners.

(2.) A perusal of the complaint under Sec. 138 of Negotiable Instruments Act, 1881 (hereinafter 'NI Act') reveals that the complainant/respondent no. 2 i.e. 'S.A Consultants and Forwarders Pvt. Ltd.', a Private Limited Company, had filed the present complaint against the accused company/accused no. 1 i.e. 'M/s Cargo Planners Ltd.', whose directors were accused no. 2 Bina Jain (petitioner no. 1), accused no. 3 Shikhar Chandra Jain, accused no. 4 Shivi Jain and accused no. 5 Ramesh Chand Jain (petitioner no. 2) whereas accused no. 6 Tulika Gaharwar (petitioner no. 3) was the Company Secretary. The case of complainant was that it was involved in providing services of air freight, ocean freight, customs house agent, warehousing, distribution, etc, and since it was a member of 'International Air Transport Association', it used to work as an agent of various airlines and was authorized to provide services of transportation of goods. It was stated that accused company was also an IATA agent but it was not having enough stocks of airlines to satisfy its requirement for cargo transport, and in December, 2016, the complainant and accused company had agreed to carry out business together. It was further stated that complainant used to send its invoices on fortnightly basis and initially, the accused used to pay regularly to the complainant and this continued till September, 2017. However, thereafter, the accused started defaulting in payments to the complainant and the same was duly informed to the accused many times and the same was duly acknowledged by the accused vide its email on 24/3/2018. It was alleged that the last payment made by the accused company was of Rs.1,00,000.00 on 5/5/2018, and after adjusting all the amounts received towards the outstanding invoices, Rs.97,31,247.00 remained as outstanding in the accounts maintained by the complainant. Thereafter, the complainant had issued a demand notice dtd. 11/5/2018 to the accused company, pursuant to which the accused had issued a cheque bearing no.20444 dtd. 15/6/2018 drawn on HDFC Bank, G-3-4, Suryaklran Building, 19, Kasturba Gandhi Marg, New Delhi-110001, for an amount of Rs.19,98,779.00(Rupees Nineteen Lakhs Ninety-Eight Thousand Seven Hundred and Seventy-Nine Only) in favour of the complainant as part-payment for discharge of its debt. Upon presentation of said cheque by the complainant for encashment with its bank i.e. The Development Bank of Singapore Limited, Connaught Place, New Delhi, the cheque was returned unpaid vide memo dtd. 30/8/2018 with the remarks 'Exceeds Arrangement'. Thereafter, the complainant issued a demand notice dtd. 5/9/2018 to accused company, to which the accused company replied vide reply to legal notice dtd. 15/9/2018 wherein it was mentioned that the said cheque was a blank security cheque and the allegations leveled by the complainant were incorrect and baseless. Having not received any payment from the accused persons, the complainant filed the present complaint bearing no. 15254/2018 before the Court of learned Metropolitan Magistrate (NI Act)-02, Patiala House Courts, New Delhi.

(3.) Learned counsel for the petitioners argues that there are no specific allegations against the present petitioners that they were involved in day-to-day affairs of the company so as to warrant their summoning by the learned Magistrate. It is stated that the complainant has levelled general allegations against the present petitioners and as per the settled law, in case of only general allegations and absence of specific role assigned to a person, he/she cannot be summoned as an accused in a case under Sec. 138/141 of NI Act. It is also argued that petitioner no. 2 was not even present in India at the time of alleged acts and issuance of cheques etc., and therefore, this is also a ground that the impugned order be set aside. It is also argued that merely because petitioner no. 1 and 3 have attended the meetings of the accused company and are part of minutes of the meeting of the company, they cannot be presumed to be involved in the day-to-day affairs of the company. It is also stated that petitioner no. 3 is merely a Company Secretary in the accused company and has no role in the day-to-day affairs of the same.