K P G NAIR Vs. STATE

JUDGEMENT

(1.) THIS petition under Section 482 Crpc seeks the quashing of Criminal Complaint no. 2111/1/04 pending in the court of learned Metropolitan Magistrate ( MM ), new Delhi titled M/s. Officeaids and Others v. M/s. Pertech Computers Ltd. and others and all proceedings consequent thereto including the summoning order dated 24th July, 1998 passed by the learned MM.

(2.) THE aforementioned complaint was filed by Respondents 2 and 3 in the Court of the learned MM under Sections 138 read with 141 of the Negotiable Instruments act, 1881 ( NI Act ). The complainant alleged that pursuant to commercial dealings between the parties, as on 31st August 1997 a sum of Rs. 43. 47 lakhs was due and payable to M/s. Officeaids the complainant , by M/s. Pertech computers Ltd. ( PCL ) accused No. 1. Accused No. 2 was the Chairman of PCL. The petitioner was arrayed as accused No. 3 in his capacity as Director, PCL. Accused No. 4 to 8 were also shown as Directors of PCL. It was stated in the complaint that three cheques dated 31. 12. 1997 were issued by PCL in favour of m/s. Officeaids for the sums of Rs. 5,96,200/-, Rs. 8,94,300/- and Rs. 14,90,500/ -. When presented for payment these cheques were dishonoured with the remarks payment stopped by drawer by a cheque return memo dated 2nd January, 1998. Thereafter notice demanding payment was sent on 13th January, 1998 to all the accused and the complaint was filed on 21st February, 1998. By an order dated 24th July, 1998 the learned MM, after recording the pre-summoning evidence of cws 1 and 2 i. e. the proprietor of M/s. Officeaids (CW-2) as well as the official from the bank (CW-1) issued summons to the accused including the petitioner here.

(3.) IT is contended by learned counsel for the Petitioners that the averments made in the complaint do not specify out the role played by the Petitioner in the issuance of the cheques in question. The allegations being vague, the learned MM could not have taken cognizance of the offences vis-a-vis the petitioner. Secondly, it is submitted that Petitioner resigned as a Director on 29th December, 1997 i. e. even before the date of issuance of the cheques. A photocopy of the Form 32 filed in terms of Section 303 (2) of the Companies Act, 1956 by PCL with the Registrar of Companies has been placed on record. It is accordingly submitted that the Petitioner here cannot be held liable for the offence under Section 138 read with 141 NI Act since on the date of commission of the offence the Petitioner was not in charge of the affairs of the PCL or responsible for it for the conduct of the affairs. Learned counsel has relied upon S. M. S. Pharmaceuticals v. Neeta Bhalla (I) AIR 2005 SC 3512, Everest advertising (P) Ltd. v. State, Govt. of NCT of Delhi (2007) 5 SCC 54, S. M. S. Pharmaceuticals Ltd. Neeta Bhalla (II) (2007) 4 SCC 70, N. K. Wahi v. Shekhar singh 2007 (4) SCALE, K. Srikant Singhv. North east Securities Ltd. JT 2007 (9)SCC 449. Reliance is also placed on the judgment of this Court in J. N. Bhatia v. State 139 (2007) DLT 361.