2000-(099)-COMPCAS -0517 -DEL Companies Act Judgements

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GYAN CHAND KOTIA v. INDIAN RENEWABLE ENERGY DEVELOPMENT AGENCY LTD.

Crl. M. (M) No. 1983 of 1999 and Crl. M. No. 6226 of 1999, decided on November 22, 1999.

IN THE DELHI HIGH COURT

Ashish Aggarwal for the petitioner.

Ravi Data for the respondent.

JUDGMENT

M. S. A. SIDDIQUI J. – By this petition under section 482 of the Criminal Procedure Code, 1973, the petitioner seeks quashing of the order dated January 4, 1999, passed by the Metropolitan Magistrate, New Delhi, directing issue of process against him.

The cheque No. 371664 dated March 31, 1998, for Rs. 4.46 lakhs was issued by Marson’s Finance Ltd. in favour of the respondent-company. When the cheque was presented for encashment, it was dishonoured on the ground that sufficient funds were not available. A notice was served on Marson’s Finance Ltd., but despite its service, the respondent-company did not make payment. This was followed by a complaint in the court of the Metropolitan Magistrate, New Delhi. On the complaint being filed, process was also issued against the petitioner. Aggrieved thereby, the petitioner has come up before this court under section 482 of the Criminal Procedure Code.

Referring to section 141 of the Negotiable Instruments Act, 1881 (for short “the Act”), learned counsel for the petitioner contended that the complaint against the petitioner is not maintainable as at the relevant time he was not in charge of and responsible to Marson’s Finance Ltd. for the conduct of its business. Learned counsel has invited my attention to the averments made in paras. Nos. 2 and 6 of the complaint which are as under :

“2. That accused No. 1, namely, Marson’s Finance Ltd. is a public limited company, registered under the Companies Act, 1956, having its registered office at 4, Chandni Chowk Street, Calcutta 700 072; accused No. 2, Shri Akhilesh Kotia and accused No. 3 Shri Gyan Chand Kotia are the directors of accused No. 1 and as such responsible for taking all decisions for and on behalf of accused No. 1; and accused No. 4 Shri Gaurav Jain is the manager of accused No. 1 and as such responsible for all the acts of accused No. 1.

6. That as submitted hereinabove, accused Nos. 2 and 3 are the directors and accused No. 4 is the manager of accused No. 1, i.e., Marson’s Finance Limited having its registered office at 4, Chandni Chowk Street, Calcutta 700 072. The cheque No. 371664 was duly issued by and on behalf of accused No. 1, as per the decision and instructions of accused Nos. 2 and 3, and accused No. 4 being the manager is responsible for the conduct of the business of accused No. 1, and hence accused Nos. 2 to 4 are jointly and severally liable for the acts of accused No. 1 in terms of the provisions contained under section 141 of the Negotiable Instruments Act.”

A bare reading of the aforesaid paragraphs of the complaint would show that there is specific allegation in the complaint that the petitioner was also responsible for taking all the decisions of behalf of the offending company, namely, Marson’s Finance Ltd., and further the cheque in question was issued on behalf of the said company under the instructions of the petitioner. From these averments, a reasonable inference can be drawn that the petitioner could also be vicariously liable for the offence under section 138 of the Act alleged to have been committed by the offending company. In my opinion, the ratio decidendi of the decision of the Supreme Court in State of Haryana v. Brij Lal Mittal [1998] 93 Comp Cas 329; [1998] 2 Comp LJ 1, does not govern a case like that in hand. In that case it was found that except a bald statement in the complaint that the respondents were directors of the manufacturers, there was no other allegation to indicate, even prima facie, that they were in charge of the company and also responsible to the company for the conduct of its business. On these facts, it was held that simply because a person is director of the company it does not necessarily mean that he would be vicariously liable for the offence committed by the company. In the instant case, as noticed earlier, there is specific allegation against the petitioner that the cheque in question was issued by the offending company under his instructions. In this view of the matter, the learned magistrate has not committed any illegality in taking cognisance of the offence under section 138/ section 141 of the Act against the petitioner.

For the foregoing reasons, the petition is dismissed.

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