R K MISHRA Vs. STATE OF DELHI

JUDGEMENT

(1.) The petitioner herein is aggrieved against the summoning order passed by the learned M.M. in complaint under Section 138 of Negotiable Instruments Act filed by respondent No. 2 herein. Respondent No. 2, namely, International Tractors Limited (hereinafter referred to as the complainant) appointed M/s. World Aviation Services Limited as a Business Promotion Consultant for transitional Islamic State of Afghanistan on 27.12.2002. An agreement-cum-guarantee deed dated 5.2.2003 was entered into between six parties in furtherance of the Agreement dated 27.12.2002. The petitioner is a signatory to the said agreement dated 5.2.2003. On 3.10.2003 cheque bearing No. 014863 dated 6.4.2003 for Rs. 50 lacs was issued by M/s. World Aviation Services Limited which was signed by one Mr. G.K. Akbari, as director of this company. On presentation, the cheque was dishonoured. Legal notice dated 9.10.2003 was issued by the complainant calling upon the company to make payment. This notice was issued to the petitioner as well. As the payment was not made within 15 days of receipt of the notice, complainant filed the complaint under Section 138 of the Negotiable Instruments Act in which the impugned summoning orders have been issued. There are two persons arraigned as accused persons in this complaint. One Mr. G.K. Akbari in the capacity of the Director of M/s. World Aviation Services Limited and the other is the petitioner, who is described as Director-cum-Manager Partner of M/s. R.K. Associates. The petitioner had moved application for his discharge which application has rightly been dismissed by the learned Metropolitan Magistrate vide order dated 30.10.2004 on the ground that he has no power to recall the summons, once issued, in view of the judgment of the judgment of the Hon'ble Supreme Court in 2004 (7) Scale 131 and 2004 (IX) AD (SC) 219. Since such powers vest with this Court only under Section 482 of the Cr.P.C., the petitioner has accordingly preferred this petition with same prayer.

(2.) Case of the petitioner is that cheque in question was issued by M/s. World Aviation Services Limited and signed by Mr. G.K. Akbari and petitioner has nothing to do with the said complaint. He is neither Director in the said company nor in any way incharge of or controlling the affairs of this company. His submission is that though he is a partner of M/s. R.K. Associates, who was signatory to the agreement but as the cheque in question is not issued by/or on behalf of the said partnership and is not signed by the petitioner, the petitioner could not be impleaded as an accused person in the criminal proceedings arising out of the dishonour of the cheque in question. In support of this submission, he has relied upon the following judgments: I.P.Ramakrishnan and Another v. Bagnar Finance Co. - Vol. 83 1995 Company Cases 769. 2.Sudesh Kumar Sharma v. K.S. Selvamani and Others " Vol. 83 1995 Company Cases 806. 3.Kitex Garments Limited v. Ajay Koushik Prop. Karan Traders rep. by Power of Attorney Holder - 2002 (1) Crimes 458

(3.) The complainant, on the other hand, relying upon the clauses in the Agreement to which the petitioner is also a party, submits that liability of paying the debt was of the petitioner as well and since the cheque in question was issued in discharge of the said liability, the petitioner is equally liable. Learned counsel for the complainant referred to the averments made in the complaint, wherein it is stated that by virtue of the two agreements dated 27.12.2002 and 5.12.2003, both the accused contracted to arrange supply order of 5000 Tractors/Agricultural Implements of equivalent value from the Government of Afghanistan or other countries within a period of three months from 27.12.2002 on commission basis stated therein. Complainant company made an advance of Rs. 50 lacs which was adjustable against the commission earned on the basis of supply orders arranged by them for it. Since both the parties individually and jointly failed to get any supply order from the Afghanistan Govt., the advance of Rs. 50 lacs given by the complainant became payable which was a joint liability of both the accused persons and as the cheque in question was given in discharge of this liability, the petitioner was also liable for non-payment.