JAYSHREE KHEMKA Vs. PREMA KANODIA

JUDGEMENT

(1.) THE present petition has been filed by the petitioners under Section 482, Cr.P.C. for quashing of the Criminal Complaint No. 184/1 of 2005 under Section 138/141 of Negotiable Instruments Act, 1881 (hereinafter as N.I. Act) as well as the summoning order dated 15.3.2005 against the petitioners. The said complaint is pending before learned Metropolitan Magistrate Shri Rakesh Kumar, Tis Hazari Courts, Delhi. A cheque bearing No. 964109 drawn on State Bank of India, Faridabad, Haryana issued on 24.12.2004 by the petitioners as alleged in the complaint was dishonoured and hence formed the subject matter of the present dispute. The petitioners are respondent Nos. 3 and 4 in the complaint being directors of respondent No. 1 M/s. Khemka Ispat Ltd. registered under the Companies Act, The complainant Sh. Prem Kanodia is the Proprietor of M/s. Century Metal.

(2.) IT is alleged in the complaint that M/s. Khemka Ispat Ltd., (hereinafter as the company) approached the complainant for purchase of various kinds of Aluminum goods which were supplied by the complainant as per the orders placed. Cheque bearing No. 964109 dated 24.12.2004 for Rs. 9,54,344/- drawn on State Bank of India, Faridabad, Haryana was issued by Mr. R.P. Khema, Smt. Jayshree Khemka, petitioner No. 1 and Ms. Decpti Khemka, petitioner No. 2 to discharge the liability of the company and the cheque bore signatures of Mr. R.P. Khemka. The cheque was presented for encashment by the complainant to his Banker. However, the cheque was dishonoured and was returned unpaid by the Banker of the respondent No. 1 company with the remarks 'exceeds arrangement' vide memo dated 27.12.2004 which was received by the complainant along with the bounced cheque. The complainant contacted respondents over telephone but in vain. Consequently, a legal notice dated 7.1.2005, posted on 11.1.2005 was issued under Section 138 of the N.I. Act vide registered AD and UPC, wherein demand for payment of the cheque amount within fifteen days was made from the company. The complainant also sent notice to Mr. R.P. Khemka and petitioner Nos. 1 and 2 being the directors of M/s. Khemka Ispat Ltd. who refused to receive the notice as per remarks of the postal authority. The notice sent through UPC had also not been received back.

(3.) MR . Sunil Fernandes, learned Counsel for the petitioners has pleaded that at the time when cheques were issued, the petitioners had already resigned on 22.12.2004 from their capacity as directors and has placed on record true copy of form No. 32 containing the particulars of appointment of directors and changes among directors of the company dated 22.12.2004. It is submitted by the petitioners that they did not hold the post of directors in the company at the time of issuance of the impugned cheque and, therefore, cannot be made liable under Section 141 of the N.I. Act. It is also pleaded that the petitioners are neither signatories to the cheque nor are responsible in any manner for transactions leading to issuance of the said cheque. The petitioners were non-executive directors of the accused company and as such were never responsible or involved in its day-to-day activities.