J N BHATIA Vs. STATE OF DELHI

JUDGEMENT

(1.) All these cases relate to complaints under Sections 138 and 142 of the Negotiable Instruments Act (in short the 'NI Act') based on dishonour of cheques. Further, in all these cases, the cheques are issued by and on behalf of a company incorporated under the Indian Companies Act or a partnership firm. The complainants, in addition to making the said companies/firms as principal accused, have also impleaded certain other persons in the capacity of their being Directors or partners, as the case may be. Again, in all these cases, some of those Directors or partners have come up and have filed these petitions under Section 482 of the Code of Criminal Procedure seeking quashing of summoning orders against them. Plea is also common in these cases. It is either contended that they ceased to be the Directors/partners before the cheque(s) was/were presented which got dishonoured and, therefore, since they had no concern with the company/firm as on the date of dishonour of the cheque(s), they could not be arraigned as accused persons. Or else, their contention is that they are not the persons who were in charge and responsible for the business of the company or the firm and, therefore, could not have been implicated in the complaint case(s) in view of the provisions of Section 141 of the NI Act.

(2.) Though the factual situation in these cases may be somewhat different from each other, the question of law, which arises for determination, is a common one because of the commonality of the pleas raised by these petitioners and indicated above in brief. Summoning orders have been issued in all these cases. The Supreme Court has, in the case of Adalat Prasad Vs. Jindal, 2004 VIII AD (S.C.) 533 = 113 (2004) DLT 356 (SC), held that after the issuance of the summoning orders, the Magistrate does not have power to review/recall the same and it is only the High Court which can pass necessary orders in this behalf under Section 482 of the Cr.P.C. It is for this reason that challenging the summoning orders passed, these petitions are filed. Though various decisions have been rendered by the Apex Court and the High Courts interpreting the provisions of Section 141 of the NI Act, cases are pouring in challenging summoning orders by certain directors/partners raising the plea that criminal liability cannot be fastened on them.

(3.) Therefore, in order to curb/check the said tendency and to prevent jeopardy caused to the liberty of the summoned persons as also saving them from extreme hardship and inconvenience, the trial court is legally obliged to scrutinize the material and allegations in the complaint cautiously before issuance of process. It is for this reason, I deem it proper to revisit these judgments and cull out the principles laid down therein which MMs are required to keep in mind before passing the summoning orders against such Directors/partners, who are additionally made accused persons in the complaints. For this, I am making Crl.M.C. No.3514-15/2005 as the lead case taking note of the facts of the said case and the dispute emerging therefrom for better understanding of the principles which have been laid down in such cases. Therefore, I shall deal with each case on its own merits.