CHANAKYA BHUPEN CHAKRAVARTI & ANR Vs. RAJESHRI KARWA

JUDGEMENT

(1.) On the criminal complaints (CC Nos. 4401, 4402, 4408, 4404, 4407, 4406, 4405, 4403 of 2017) instituted by the respondents in these petitions, each alleging offence under Section 138, Negotiable Instruments Act, 1881 (NI Act) having been committed concerning different set of cheques, the Metropolitan Magistrate by his almost identical orders passed on 26.04.2017, summoned amongst others, the petitioners as accused, invoking the vicarious criminal liability under Section 141 NI Act, 1881 against them, they having been shown in the array as fourth and fifth accused, their description being that of a director of Amrapali Silicon City Pvt. Ltd. which is the company against whose account and on whose behalf the said cheques had been issued, the same having been concededly returned unpaid.

(2.) The petitioners have come up to this Court invoking the inherent power and jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.) to bring a challenge to the said summoning orders primarily contending that they were non-executive directors of Amrapali Silicon City Pvt. Ltd. (the company accused) at all relevant points of time, though their additional submission also is that they had already resigned from even such position prior to the presentation of the cheques for encashment.

(3.) The submission of the petitioners that on account of being "non- executive directors" nominees of the investor company, they were not responsible for the day-to-day affairs or conduct of the business of the company accused, is founded primarily on copies of Form 32 submitted pursuant to sections 303 (2), 264(2) or 266 (1) (a) and 266 (1)(b) (iii) of the Companies Act, 1956, the said document indicating their appointment as "non-executive directors" in the company accused on 07.08.2012. It has been submitted that this fact was within the knowledge of the respondent (the complainant before the magistrate) inasmuch as replies were sent on 10.02.2017 to the notices of demand served upon these petitioners, the complainant having scrupulously avoided any reference to such reply in the criminal complaints as also the evidence which was led in its support at the stage of pre-summoning inquiry. The petitioners have also placed reliance on articles of agreement dated 09.10.2015 whereunder the company accused had entered into an arrangement with the respondents for purposes of investment in its group housing project by the respondent (the complainant), which was to be repaid by the said company through the cheques in question under "buy back agreement". Reliance is also placed on the articles of association of the company accused wherein it is clarified - by clause 36 - that the non-executive directors appointed by the investors - shall have no responsibility for the day-to-day management of the company.