TaxTMI 
TaxTMI 
2015 (6) TMI 149
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act') and the common order of 2nd June, 2010 (vide which petitioners have been summoned as accused), is sought on merits by M/s Rachana Global Excavation Limited and its Chairman, Managing Director and a Director. In the above captioned four petitions, petitioner - Nalin, Chairman of M/s Rachana Global Excavation Limited (hereinafter referred to as M/s Rachana Global) and petitioner - Ashesh, Director of M/s Rachana Global seek to challenge summoning order of 2nd June, 2010 on the ground that there are no averments to make them vicariously liable. Whereas, in the above captioned remaining two petitions i.e. Crl. M.C. No. 4395/2010 and Crl. M.C. 4396/2010, petiti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....140,274 by 31st January, 2010 along with interest @ 12 % pa w.e.f. 1st October, 2009 till 31st January 2010 which was calculated and agreed to be US $ 2,85,611/- thereby totaling US $ 7,425,885. M/s Rachana Global gave a letter of 18th January, 2010 to M/s JSPL in which M/s Rachana Global acknowledged the liability of M/s Rachana to pay US $ 7,425,885 to M/s JSPL and enclosed three post dated cheques of Rs. 20,00,00,000/-, Rs. 7,84,52,604/- and Rs. 5,00,00,000/- respectively, totaling to Rs. 32,84,52,604/- (equivalent to aforesaid US $ 7,425,885) which were payable at Delhi and were dishonoured. Hence, two complaints in question were lodged. To seek quashing of these two complaints in question and the common summoning order, it was vehem....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... enclosed with letter of 18th January, 2010 and in the said letter, it was specifically stated that these cheques were given as security and if M/s Rachana in Mozambique does not clear the cheques towards M/s JSPL in Mauritius on or before 31st January, 2010, then these cheques were encashable. Thus, it was contended that there was no legally enforceable debt when these three cheques were given to the complainant on 18th January, 2010. To submit that the instant case does not come within the ambit of Section 138 of NI Act, the reliance was placed on decisions in M/s Indus Airways Private Limited and others v. M/s Magnum Aviation Private Limited and Another 2014 SCC Online SC 305; Collage Culture and Ors. V. Apparel Export Promotion Council ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....placed upon decisions in Collage Culture v. Apparel Export Promotion Council 2007 (99) DRJ 251; Jyoti Build Tech Private Limited v. Mideast Pipeline Products 2011 (183) DLT 680; C.V. Alexander v. Joseph Chacko 1995 82 copcas 368 Ker; ICDS Limited v. Beena Shabeer 2002 (6) SCC 426; K.S. Bakshi v. State 2008 (146) DLT 125; Krish International Private Limited v. State 2013 (179) CompCas 210; Anil Sanchar v. Shree Nath Spinners Private Limited 2011 (13) SCC 148; HMT Watches Limited v. M.A. Abida and another 2015 SCC Online SC 233; N & S & N Consultants S.R.O v. SRM Exploration Private Limited 2011 (170) DLT 685; N. Rangachari v. Bharat Sanchar Nigam Limited 2007 (5) SCC 108. As regards the complaints in question being hit by FEMA, it was sub....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ents against the petitioners - Nalin and Ashesh. On this aspect, it is no longer res integra that there has to be specific averments against Director or Officer of accused company for prosecution in complaint under Section 138 of NI Act for holding a person vicariously liable. Keeping in view of the dictum of the Apex Court in Central Bank of India (supra), Anita Malhotra (supra) and National Small Scales Industries (supra), the two complaints in question have been perused and thereafter, this Court finds that it cannot be said by any stretch of imagination that the continuance of proceedings arising out of these two complaints is an abuse of process of law. Since the proceedings under Section 138 of NI Act, which are in fact summary pro....