GOPAL GUPTA Vs. SILVER LINE INCORPORATION

JUDGEMENT

(1.) A complaint case was filed by the respondent M/s Silver Line Incorporation against the petitioner Gopal Gupta C/o Vijay Polymers Pvt. Ltd. being Complaint Case No.1274/2009 under Sec. 138 of the Negotiable Instruments Act (in short 'NI Act') alleging that on the request of the petitioner, some goods were supplied by the complainant and in lieu of the supply, 8 cheques were issued totalling for a sum of Rs. 3,88,684.00 drawn on Union Bank of India, Punjabi Bagh, New Delhi. When the cheques were presented, the same were returned unpaid with the endorsement 'funds insufficient' vide memos dated 18th Dec., 2004. The complainant sent legal notice dated 20th Jan., 2005 which was duly served on the petitioner/accused by way of registered AD post and UPC. Despite service of legal notice, neither any reply was received nor payment was made hence offence punishable under Sec. 138 NI Act had been committed.

(2.) Since the complaint was barred by limitation and not maintainable on other counts as well, the petitioner filed a petition being Crl.M.C. 1609/2008 before this Court which was allowed vide order dated 11th May, 2009 to the extent the order of the Metropolitan Magistrate condoning the delay was set aside and the matter was remanded back to learned Metropolitan Magistrate for passing fresh orders after hearing the accused. Thus, according to the petitioner, the issue of maintainability of the complaint itself was not decided vide order dated 11th May, 2009. Thereafter, the learned Metropolitan Magistrate dismissed the application seeking condonation of delay filed by the respondent which order was upheld in the revision petition by the learned Additional Sessions Judge. The respondent filed a petition before this Court being Crl.M.C. 3768/2010 wherein vide order dated 17th Nov., 2011 delay was condoned subject to payment of Rs. 25000.00 as cost and the matter was remanded back. Learned Metropolitan Magistrate summoned the petitioner afresh vide order dated 16th Jan., 201

(3.) The sole ground urged before this Court seeking quashing of the criminal complaint is that the cheques have been drawn by the petitioner as Director of the Company for an account maintained by the company and not as an individual. Since no legal notice was issued to the company nor the company has been made an accused, thus no summons could be issued on the criminal complaint against the petitioner, who acted in his capacity as the Director of the company in view of the decision of the Supreme Court reported as (2012) 5 SCC 661 Aneeta Hada Vs. Godfather Travels and Tours Pvt. Ltd..