(1.) THIS petition under Section 482 of the Code of Criminal Procedure, 1973 (Crpc) seeks the quashing of Complaint Case No. 299/01/2007 titled "national Agricultural Cooperative Marketing Federation of India ltd. (NAFED) v. M/s Earthtech Enterprises Ltd. and Others" pending in the Court of the Metropolitan Magistrate (MM), New Delhi under Section 138/141 of the Negotiable Instruments Act, 1881 (NI Act ).
(2.) THE aforementioned complaint was filed against M/s Earthtech enterprises Ltd. , and six others, including the petitioner herein, in respect of the dishonor of cheque No. 220512 dated 31st May 2006 for the sum of rs. 5,00,00,000/- (Rs. Five Crore only ). It is contended by the learned counsel for the petitioner on the strength of the judgments in S. M. S pharmaceuticals v. Neeta Bhalla (I), (2005) 8 SCC 89:2005 (85) DRJ 356 (SC) and N. K. Wahi v. Shekhar Singh, (2007) 9 SCC 481:2007 (95)DRJ 1[sc] that the complaint lacks the basic minimum averments to summon the petitioner Shri O. P. Aggarwal for the offence under Section 138 ni Act.
(3.) PARA 3 of the complaint, which is relevant, reads: "the accused No. 2 to 7 are the Directors, Authorised Signatory and responsible for day to day affairs of the accused No. 1". It is stated that barring this one averment, there is no other averment which satisfies the requirement of having to proceed against the person concerned who is in charge of the affairs of the company and responsible to it for the conduct of its business "at the time of the commission of the offence". It is stated that the cheque in question was issued on 31st May 2006. Shri O. P. Aggarwal ceased to be a Director of the company as on 20th August 1997. A certified copy of the Form 32 is also placed on record. It is submitted that inasmuch as on the date of the commission of the offence, Mr. O. P. Aggarwal was no longer the Director of the Company, no liability could be attached to him in terms of Section 138 read with 141 NI Act.