SURESH JINDAL Vs. STATE

JUDGEMENT

(1.) BY way of this petition filed under Section 482 Cr. P. C. , the petitioner seeks quashing of complaint case no. 399/2004 filed by the respondent no. 2 under Section 138 r/w with Section 142 of the N. I. Act.

(2.) BRIEF facts relevant for deciding the present petition as stated by the petitioner are that the respondent no. 2 is a body corporate constituted by the Central Government to promote industrialization through the process of giving financial assistance to small and medium industries by way of loan advances as per the provisions of the State Financial Corporation Act 1955. In the complaint filed by the said Corporation i. e. , Delhi Financial Corporation under Section 138 r/w Section 142 N. I. Act, the petitioner has been impleaded as accused no. 2 being Director of M/s. AAR EM Alloys (P) Ltd. , Mr. Ramesh Chand jindal, Director of the said company as accused no. 1 and M/s. AAR EM Alloys (P)Ltd. , as accused no. 3. It is alleged in the complaint that accused no. 3 i. e. , m/s. AAR EM Alloys (P) Ltd. , approached the said Corporation for the advancement of loan amount of Rs. 59 lacs and acceding to their request the said loan amount was advanced by the Corporation in terms of the loan agreement dated 15. 3. 96 duly executed between the parties. The said loan agreement was signed by the said two Directors on behalf of the company. It is further alleged that in discharge of their outstanding liability pertaining to the said loan amount a cheque dated 8. 12. 2003 drawn on Indian Bank, Mehrauli institutional Area for a sum of Rs. 1 lac was issued by Mr. Ramesh Chand jindal, accused no. 1, although in the complaint filed by respondent no. 2 it is wrongly stated that the cheque was issued by Mr. Suresh Jindal, accused no. 2. The said cheque was returned dishonoured with the remarks "funds insufficient" after the same was presented by respondent no. 2 with their bank. Legal notice of demand dated 15. 1. 2004 was sent by the complainant through registered A. D. cover and finding no response within the statutory period of 15 days, the said corporation filed the complaint in question. The learned M. M. taking the cognizance of the complaint had issued summons against the petitioner as well as the other accused persons. During the pendency of the said complaint the other director Mr. Ramesh Chand Jindal Chand who was the signatory and drawer of the said cheque in question died on 2. 7. 2006. The petitioner has sought quashing of the said complaint case primarily on the ground that the petitioner is not a drawer of the cheque in question and therefore, has not committed any offence punishable under Section 138 of the N. I. Act. It is also contended that the cheque in question was issued by late Shri Ramesh Chand Jindal in his individual capacity from his own saving bank account and therefore, also the petitioner cannot be made liable for dishonor of a cheque issued by the other accused in his individual capacity. It is also contended that no specific allegations have been leveled in the complaint against the petitioner attributing any role in the issuance of the said cheque or being responsible for day to day affairs and management of the company. It is also contended that even no valid notice as per requirement of Section 138 of Negotiable Instrument act was served upon the accused. No legal notice was served upon the company m/s. AAR EM Alloys (P) Ltd. , therefore, the petitioner cannot be held vicariously liable for the acts and deeds of the company. Another ground of attack by the petitioner is abatement of the complaint case due to the demise of Mr. Ramesh Chand Jindal who was the signatory and drawer of the cheque. Counsel for the petitioner submitted that respondent no. 2 had failed to release the sanctioned credit facility to the said company due to which the said company became a sick unit. Counsel further submitted that respondent no. 2 had forcibly taken possession of the factory premises of company along with the plant and machinery which was later on auctioned by the respondent no. 2 in a high handed manner. The officials of the said Corporation kept on pressurizing the Directors of the said company as a result of which late Shri Ramesh Chand jindal had issued a cheque of Rs. 1 lac from his personal account which cheque was returned dishonoured and led the respondent no. 2 to file the complaint case which is under challenge in the present petition, counsel contended. Counsel thus argued that once the cheque was issued by Mr. Ramesh Chand Jindal in his own individual capacity then as per the mandate of Section 138 of the N. I. Act, the petitioner could not have been held liable to face the criminal prosecution. In support of his arguments counsel for the petitioner placed reliance on the following judgments. SMS Pharmaceuticals Ltd. Vs. Neeta Bhalla and Anr. (2007) 4 SCC 70 d. R. Gupta Vs. State and Anr. , 95 (2002) DLT 543 k. Seetharam Reddy Vs. Smt. K. Radhika Ran and Ors and Smt. Ch. Kasturi and ors. , , 2001 (1) ALT (Crl) 175 g. Hanumantha Rao Bros. and Anr. Vs. Gaddam Lingalah and Anr. , 2005 (1) ALD (Cri) 641.

(3.) COUNSEL for the petitioner also submitted that since Mr. Ramesh chand Jindal had already died and the petitioner who was not a drawer of the said cheque and against whom no averments have been made in the complaint disclosing his role qua the company at the relevant time of commission of the offence, therefore, the complaint filed by respondent no. 2 cannot proceed and needs to be quashed.