DINESH MOHINDRA Vs. DCM FINANCIAL SERVICES LTD

JUDGEMENT

(1.) THROUGH this petition under Section 482 CrPC the Petitioners seek to be discharged in Criminal Complaint No. 5654/1 titled "D.C.M. Financial Services Ltd. v. M/s. Sai Moh Auto Links Pvt. Ltd." pending in the Court of the learned Metropolitan Magistrate ('MM'), New Delhi under Section 138 of the Negotiable Instruments Act, 1881 ('NI Act').

(2.) THE aforementioned complaint was filed in respect of the dishonour of a Cheque No.319925 dated 1st November 1998 for a sum of Rs. 1,68,441/-drawn in favour of M/s.DCM Financial Services Ltd. by Sai Moh Auto Links Pvt. Ltd.('SMALPL'). The cheque when presented to the drawer's Bank was dishonoured with the remarks "funds insufficient".

(3.) MR . K.T.S. Tulsi, learned Senior counsel appearing for the Petitioners submits that both these Petitioners were not Directors of SMALPL on the date of the cheque i.e. 1st November 1998. He relies on the certified copy of the Form 32 placed on record which shows that both Dinesh Mohindra and Karuna Mohindra resigned as Directors of SMALPL on 25th December 1997. It is stated that therefore on the date of the commission of the offence neither Petitioner was in charge of the affairs of SMALPL or responsible to it for the conduct of its business as stated in the complaint. Referring to the judgments of the Supreme Court in S.M.S. Pharmaceuticals v. Neeta Bhalla (I) 2005 (8) SCC 89, S.M.S. Pharmaceuticals v. Neeta Bhalla (II) 2007 (4) SCC 70. and DCM Financial Services Ltd. v. J.N. Sareen 2008 (8) SCC 1, it is submitted that no deemed liability in terms of Section 14 NI Act can attach to a Director who was no longer as such on the date of the commission of the offence. Mr. Tulsi also refers to the observations of the Supreme Court in Anil Kumar Sawhney v. Gulsan Rai 1993 (4) SCC 424. where it was held that even a postdated cheque which was not payable on demand till a particular date, was not a cheque in the eyes of law till the date it becomes payable on demand.