NEERAJ GOEL Vs. HARSHIL TRADING CO.

JUDGEMENT

(1.) The present petition has been filed under Sec. 482 of the Code of Criminal Procedure for quashing of the Complaint bearing No.720 of 2016, dtd. 28/3/2016, under Ss. 138/142 of the Negotiable Instruments Act titled as "M/s Harshil Trading Co. Vs. Richi Rich Agro Foods (P) Ltd. and others" (Annexure P-4) and also quashing of the order dtd. 28/3/2016 (Annexure P-5), whereby the summoning orders have been issued to the petitioners.

(2.) Learned counsel for the petitioners has submitted that the present complaint was filed by the respondent-M/s Harshil Trading Co. under Sec. 138 read with 142 of the Negotiable Instruments Act against one Richi Rich Agro Foods (P) Ltd. and the present two petitioners and has further submitted that the said complaint was not maintainable and the consequent summoning order issued to the petitioners was also not maintainable in view of the fact that there is no specific averment made in the complaint that they were managing the affairs of the company. He also submitted that there is no valid reason assigned while the passing the order of summoning against the present petitioners for facing the trial and there is no logical ground to summon the petitioners. He further submitted that mere issuance of a cheque is not an offence but it becomes punishable when the said cheque is dishonoured. He also submitted that in the present case petitioner No.3-Company had been sealed by the authorities on 7/4/2017 and the same was put in auction as is evident from the letter dtd. 12/5/2017 and 4/10/2018 respectively, and therefore, the petitioners were not liable to be proceeded under the provisions of Negotiable Instruments Act. He further submitted that moreover petitioner No.1 was not signatory of any cheque whereas only petitioner No.2 had only signed the cheque for and on behalf of the Company and a perusal of the cheque would reveal that it was issued by the company and not by petitioner No.2 in his individual capacity.

(3.) Learned counsel for the petitioner has also relied upon the judgment of the Hon'ble Supreme Court passed in "S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla and another", 2005(4) R.C.R. (Criminal) 141, to contend that it is necessary to specifically aver in the complaint that the Directors were Incharge of, or responsible for conduct of business of the Company and this averment was essential requirement of Sec. 141 of the Negotiable Instruments Act.