NAVEEN KUMAR Vs. HV WAREHOUSE LLP AND OTHERS

JUDGEMENT

(1.) The petitioner has sought quashing of the complaint under Section 138 read with Section 142 of Negotiable Instruments Act, 1881 and the summoning order passed by Judicial Magistrate, Rewari vide which the petitioner along with respondents No.2 to 4 was ordered to be summoned by the trial Court.

(2.) Complaint (Annexure P-1) was filed by respondent No.1 against Poonam Super Multi-Specialty Hospital Private Limited and its Director-respondent No.2 Rajesh Sharma, respondent No.3 Santosh Kumar Sharma and petitioner Naveen Kumar. It is specifically pleaded in the complaint that all the Directors are incharge and are responsible for the business of respondent No.2 and its day to day affairs. For the project of respondent No.2-firm, a MOU was executed on 19.01.2012 between the accused and the complainant and as per the terms of said MOU, the complainant firm paid a sum of Rs. 21 lacs as interest free refundable security to the accused, which was to be refunded at the time of transfer of total land by the complainant firm to the accused persons. The accused persons gave a counter guarantee cheque bearing No.622140 drawn at Oriental Bank of Commerce, Dharuhera Road, Rewari to the complainant company. The said cheque was to be presented by the complainant firm without notice to the accused persons in case of any delay or default on their part. They also issued a post dated cheque bearing No.622141 dated 24.03.2012 for Rs. 2 crores drawn on Oriental Bank of Commerce, Dharuhera Road, Rewari as advance payment for procurement of the land as per terms of the MOU and the cheque was to be presented after two months from the date of the said MOU. However, due to the lapse on the part of the accused, the terms of MOU dated 19.01.2012 were amended to grant further extension till 03.05.2012 to the accused for arranging the advance money of Rs. 2 crores, subject to the condition that they will issue a cheque of Rs. 30 lacs in favour of the complainant firm which include the amount of Rs. 21 lacs plus interest and charges amounting to Rs. 9 lacs. Later on, when cheque No.622141 was presented for encashment on 12.06.2012 and it was dishonoured. The cheque No.622146 dated 03.05.2012 for Rs. 30 lacs was also presented for encashment but it was also dishonoured by the bank. After fulfilling the required formalities, instant complaint was filed. The petitioner has sought quashing of the complaint inter-alia pleading as follows:-

(3.) Learned counsel for respondent No.1-complainant submits that on the website of Registrar of Companies, the petitioner continues to be the Director of respondent No.2 firm, as such, the documents (Annexure P-2 and P-3) are just paper transactions created by the petitioner. Moreover, it is a question of fact, which he can prove in the trial Court but no such evidence has been produced on record. The complainant has concluded its evidence before the trial Court. The case is fixed for statement of accused under Section 313 Code of Criminal Procedure (Cr.P.C.-for short). Against his summoning order, the petitioner has not filed any revision. He has not challenged the notice of accusation served on him, rather has cross-examined all the witnesses examined by the complainant. It was at the very late stage, when case was fixed for recording statements of accused under Section 313 Cr.P.C. that he came up with this petition seeking quashing of the complaint and summoning order dated 06.10.2012 withholding this fact that the entire evidence before he trial Court was already complete. Thereafter, he has held up the proceedings before the trial Court on the pretext that he has filed this Criminal Miscellaneous Petition. In the complaint, the complainant has specifically averred that the petitioner is the Director of M/s Poonam Super Multi-Specialty Hospital Private Limited and is incharge and responsible for the conduct and business and day to day affairs of the company along with other Directors. The resignation, if any, submitted by the petitioner was never brought to the notice of general public or necessary intimation was given to the Registrar of Companies.