AMIR ZAFAR Vs. STATE OF DELHI

JUDGEMENT

(1.) The petitioners in these two petitions are arraigned as accused Nos. 3 and 4 in the complaint filed by the respondent No. 2 herein under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'). After recording the pre-summoning evidence, the learned trial Court passed order dated 25.6.1998 stating that prima facie case against the accused persons was made out and summons were issued against all the accused persons. It may be noted that the accused No. 1 is the company, namely, M/s. United Provinces Tannery Co. (Pvt.) Ltd., accused No. 2 is the Managing Director of the said company and the accused Nos. 3 and 4 (who are the petitioners in these petitions) are the Directors of this company. It is a private limited company and the Managing Director as well as the two Directors are related to each other. The complaint is founded on the allegations that the complainant company had given financial assistance in the sum of Rs. 17,50,000/- to the accused No. 1 for the purchase of "Dust Collection Unit". This amount was to be repaid, as per the agreement arrived at between the parties, in 36 monthly instalments of Rs. 73,000/- each starting from March 1996 to February 1999. It is further alleged that some of the cheques issued by the accused company had bounced back and the complainant requested the accused persons to pay the amount of the cheques. Though they promised to pay the amount by way of demand draft, instead of sending demand draft, a cheque bearing No. 679398 dated 21.8.1997 for a sum of Rs. 7,30,000/- drawn on Vijaya Bank, Delhi was given. This cheque was returned as dishonoured when presented for payment by the complainant. The complainant sent notices to all the accused persons but no reply was given nor payment was made and, therefore, aforesaid complaint was filed by the complainant.

(2.) The petitioners seek quashing of the summoning orders primarily on the ground that the petitioners are not in-charge of or responsible for the affairs of the accused No. 1 company and merely because they are the Directors of the company is no ground to implicate them in the said proceedings. Submission is founded on the provisions of Sub-section (1) of Section 141 of the Act and referring to the judgment of the Supreme Court in S.M.S. Pharmaceuticals v. Neeta Bhalla, IV (2005) BC 425 (SC)=VII (2005) SLT 113=IV (2005) CCR 12 (SC)=(2005) 7 Scale 397 it is argued that in the absence of such averments in the complaint, the summoning order against the petitioners, as passed by the learned MM, was bad in law.

(3.) Learned Counsel for the respondent No. 2/complainant, on the other hand, submits that the case of the petitioners is covered under Section 141(2) of the Act and as there was neglect on the part of the petitioners/Directors and the alleged offence is committed with their consent or connivance, they are rightly impleaded as parties. He further submits that there are necessary averments in the complaint in this behalf and it is for the trial Court to decide this issue after the evidence is led by the parties and this Court should not exercise its extraordinary jurisdiction under Section 482, Cr.P.C.