N.K. SENGUPTA Vs. STATE OF NCT DELHI

JUDGEMENT

(1.) RESPONDENT No.2, complainant Mr. M.N. Vatsa had filed a complaint under Section 138/142 Negotiable Instruments Act (hereinafter referred to as 'N.I.Act') read with Section 406/420 Indian Penal Code (IPC) against M/s. Global Finance Corporation Ltd. accused No. 1 and the present Petitioner who has been arrayed as accused No. 2 in the said complaint. Case of the complainant as asserted in the complaint is that he was lured by the terms and conditions of the Fixed Deposit Scheme floated by accused No. 1. He deposited a sum of Rs. 15,000/- with accused No. 1 on 21.5.97 vide FDR No. C0004727 for a period of 12 months at the interest rate of 15% per annum and the maturity amount payable was Rs. 17,412/-. For repayment of the said amount, accused company issued Post dated cheque No. 216882 dated 20.5.98 drawn on Vijaya Bank, Barakhamba Road, New Delhi. However, this cheque on presentation was dishonoured with the remarks 'insufficient funds'. Thereafter complainant sent a notice on 13.6.98 which was duly received by the accused company and in reply accused company assured payment of the dishonoured cheque but accused No.1 failed to make the payment of the impugned cheque. Hence, complainant filed this complaint before the

(2.) LEARNED trial court after considering the affidavit of the complainant filed in evidence, was pleased to summon the petitioner and the other accused for offence under Section 138 of the Act vide his order dated 30.4.2002. Since petitioner did not appear in the court, the trial court was constrained to issue NBW against the Petitioner and since thereafter petitioner has been appearing in the said complaint, however accused No. 1 company has not yet been served of the summons issued by the court. Aggrieved by the order dated 30.4.2002, petitioner has filed the present petition before this court. Respondent was duly served with the notice of the petition but has not appeared either in person or through counsel.

(3.) AFTER his resignation, the petitioner seized to have any interest as Chairman or Director in accused No. 1 company. As per the complainant himself, he had deposited Rs. 15,000/- on 21.5.1997. In other words, this deposit was made after the petitioner had already resigned from accused No.1 company. The impugned cheque which was issued by the company was dated 20.5.1998 and the maturity period of the FDR was 12 months. Therefore, at the time when the cheque was issued and was presented with his banker by the complainant for encashment, the petitioner had no interest of any nature in the accused No.1 company and was not responsible for day to day business of the company as a Director or Chairperson as the case may be. A erson who was neither the Chairman nor the Director of the company at the time of issuance of the cheque, cannot be made liable for offence under Section 138 of the Act. If the cheque on presentation is dishonoured, such vicarious liability cannot be enforced against a person who seized to be a Director of the company at that time.