SUDESH JAIN Vs. STATE OF NCT DELHI

JUDGEMENT

(1.) THIS is a petition filed by the petitioner for quashing of the complaint case no. 4123/2008 under Section 138 of the Negotiable Instruments Act registered at P. S. Mandawali, Delhi in case titled Anil Kumar Jain Vs. State and ors. pending before Mr. Sanatan Prasad, the learned Metropolitan Magistrate, karkardooma Courts, Delhi.

(2.) BRIEFLY stated the facts of the case are that the respondent no. 2 filed a criminal complaint against the present petitioner, her husband Mr. Anil Kumar jain and their company, M/s Freedom Measures Pvt. Ltd. (hereinafter referred as "the company") to whom he had advanced the loan of Rs. 2,40,000/ -. The said loan amount carried the interest @18% per annum. It is alleged that in discharge of the said liability of repayment of loan, the company M/s Freedom Measures Pvt. Ltd. through its Director Anil kumar Jain issued a cheque of Rs. 2,68,000/- drawn on The Jammu and Kashmir Bank ltd. Chawri Bazar, Delhi dated 23rd April, 2008, however, the said cheque on presentation had bounced. It is alleged that the present petitioner was the director of the company in question, and therefore, the petitioner was vicariously liable for the offence under Section 141 of the Negotiable instruments Act. Since the aforesaid liability was not discharged despite a statutory demand notice having been issued, accordingly, the complaint in question was filed. The learned Metropolitan Magistrate after recording the pre summoning evidence passed the summoning order not only against the petitioner but also against her husband Anil Kumar Jain and the Company M/s Freedom measures Pvt. Ltd. The petitioner feeling aggrieved by virtue of the said summoning order has not only challenged the same by way of present petition but has also prayed for quashing of the complaint.

(3.) I have heard the learned counsel for the petitioner as well as the learned counsel for the respondent. The main contention of the learned counsel for the petitioner has been that before making a Director of a Company vicariously liable under the provisions of 141 of the Negotiable Instruments Act the complainant must not only make an averment in the complaint that the said Director was in-charge and responsible for the day to day conduct of the business of the company but he must also adduce the evidence in this regard. Reliance in this regard is placed on S. M. S. Pharmaceuticals Ltd. Vs. Neeta Bhalla and Anr. (2005) 8 SCC 89, T. Stanes and Co. Ltd. Vs. A. Jaffarullah (2000) 1 SCC 1 174, K. K. Ahuja Vs. V. K. Vora and Anr. 2009 (9) SCALE 87, Sabhitha Ramamurthy Vs. R. B. S. Channabasavaradhya AIR 2006 SC 3086.