VIJAYANDER KUMAR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THESE three misc. petitions under Sec. 482 of the code of Criminal Procedure arises from a common order dated 31. 5. 2000 passed by the Additional Sessions Judge No. 2, Sriganganagar refusing to interfere with the order dated 1. 4. 1999 passed by the Additional Chief Judicial magistrate, Sriganganagar in criminal case No. 85/99 and 84/99; and order dated 10. 7. 1998 in criminal case No. 176/98 issuing process against the petitioners and others for offence under Sec. 138 of the Negotiable instruments Act.

(2.) BRIEFLY stated the facts of the case are that second respondent Surendra kumar, partner of M/s. Rajshree Cotton Corporation, Sriganganagar submitted a complaint in the Court of Additional Chief Judicial Magistrate, sriganganagar arraying accused Nos. A1. Satish Singhal, A2. Bharat Bhushan agarwal, A3. Anil Gupta (respondent Nos. 3 and 5 herein), A4. Vjayander kumar A5. Navnit Kumar, A6. Rakesh Kumar. and A7. Ashok Kumar Garg (petitioners herein ). M/s. R. R Texfab Ltd. , Modi Nagar has also been arrayed as Accused No. 8. It is averred that complainant firm M/s. Rajshree Cotton corporation, Sriganganagar is working as broker as well as dealer for the sale and purchase of cotton. M/s. R. P Texfab Ltd. , Modinagar, purchased cotton through the said firm of Ganganagar for that company from time to time. Lastly, a sum of Rs. 47,28,115. 80 stood in the credit balance of the ganganagar firm owned by the said company of the accused persons. However, on 24. 2. 1998 the management of the company with all its liability and assets were transferred to accused Nos. A1 to A3. A1 to A3 with the consent and knowledge of all the other accused persons issued four cheques to the complainant. Out of which cheque No. 258576 dated 25. 3. 1998 in the sum of Rs. 5,00,000/- of Union Bank of india, Noida Branch was presented before the State Bank of Patiyala, sriganganagar Branch. However, the cheque was not encased in view of the instructions of accused persons for "stop payment". Thus, the cheque was returned with memo dated 31. 3. 1998. A statutory notice dated 14. 4. 1998 was given to the accused persons that payment was not made inspite of receipt of notice. It is further averred that all the accused persons activity participated in the management of firm and they are equally liable for all its liabilities. Learned Magistrate after recording the statement under Sec. 200. of the Code of Criminal Procedure of the complainant, issued process against all the accused persons for offence under Sec. 138 of the Negotiable Instruments act. The facts of two other petitions are almost Same except the number of the cheques and dates.

(3.) IT is contended by the learned counsel that it is admitted fact that entire business, management and liability/assets of M/s. R. P Texfab Ltd. have been transferred to accused No. A1 to A3 by accused No. A4 to A7 on 24. 2. 1998. It is also not in dispute that subject cheques were issued by accused No. A1 namely Satish Singhal. Thus, in view of the provisions of Sec. 141 of negotiable Instruments Act, petitioners being not either Directors, Managers or secretaries or other officers of the company on the date of issuing of cheques, are liable for offence under Sec. 138 of the Negotiable Instruments act. On the other hand, it is submitted by the learned counsel for the respondent that it is not in dispute that cotton was sold" to M/s. R. P Texfab ltd by M/s. Rajshree Cotton Corporation. It is also not in dispute that a sum of Rs. 47,28,115. 80 was in credit balance of the accused company. Accused persons without taking into confidence the complainant at his back entered into an agreement for transfer of management, assets and liabilities of company in favour of accused Nos. A1 to A3 who were placed as new Directors for the said M/s. R. R Texfab Ltd. Accused persons summoned complainant at Modinagar and they held a joint meeting in presence of Surendra Singla in the campus of the company at Modinagar. Complainant was informed that management of the company was transferred to Satish Singhal and his associates and the liabilities as well as the assets of the company were also simultaneously transferred to Satish singhal and hi associates, therefore, aforesaid outstanding amount of rs. 47,28,115. 80 shall be paid by the new management of the company to which the complainant did not agree and insisted upon payment and clearance of the outstanding liabilities by the old management. At this juncture, assurance was given by accused Nos. A4 to A7 that Directors of the new company, including Satish Singhal would pay a part of the outstanding amount. It was further submitted that as per the agreement Rs. 23,00,000/- was to be paid by them. It is urged by the learned counsel that there are issues which can be decided only by the evidence and as such no interference is called for by this Court at this stage in exercise of powers under Sec. 482 of the Code of Criminal Procedure.