2021 (12) TMI 842

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....reinafter referred to as the N.I. Act). Additionally, the petitioner has prayed for quashing of the order dated 07.04.2021 passed by the learned Metropolitan Magistrate (N.I. Act), South-East District, Saket Courts, New Delhi, whereby his application seeking discharge/dropping of the proceedings qua him has been dismissed. 2. Briefly stated, the facts of the instant case are that respondent No. 1/complainant filed the aforesaid complaints under Sections 138/141 N.I. Act claiming that the cheques in question were issued in its favour by the accused company, i.e. Daily Life Retail and Trading Pvt. Ltd., and the same, on presentation, were dishonoured and returned with the remarks 'account closed'. As a result, a legal notice dated 30.07.2010....

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....litan Magistrate framing notice under Section 251 Cr.P.C. was set aside and it was directed that a fresh reasoned order be passed within a period of eight weeks. He also invited attention to the particulars mentioned in Form-32 along with ROC records to submit that there are other Directors of the accused company who have not been arrayed in the complaints. 5. I have heard the learned counsel for the petitioner and gone through the material placed on record as well as the decisions cited in support of his submissions. 6. A perusal of the aforesaid complaints would show that the complainant alleged that the present petitioner, who has been arrayed as accused No. 2, had agreed to guarantee repayment of all payments payable by the accused co....

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....n the complaint nor in the pre-summoning evidence, any allegation was levelled against the petitioner. Insofar as the decisions in Sunita Palta (Supra) and Har Sarup Bhasin (Supra) are concerned, the same came to be passed in cases where the petitioners were independent non-executive Directors. In Dharna Goyal (Supra), a Coordinate Bench of this Court had come to the conclusion that there were no specific allegations against the petitioner who was the CEO of the accused company. As such, none of the decisions on which reliance is placed by the learned counsel for the petitioner, are applicable to the facts of the present case. 9. Another contention raised on behalf of the petitioner is that as a special condition precedent to the aforesaid....

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....nt subsequent thereto etc. at best can be a defence for the respondent No. 2 to be put forth and to be established in the trial. In any event, it was not a case for the Court to either refuse to take cognizance or to discharge the respondent No. 2 in the manner it has been done by the High Court. Therefore, though a criminal complaint under Section 420 IPC was not sustainable in the facts and circumstances of the instant case, the complaint under section 138 of the N.I Act was maintainable and all contentions and the defence were to be considered during the course of the trial." 10. It is also worthwhile to reproduce the view taken recently in Sunil Todi and Others v. State of Gujarat and Another reported as 2021 SCC OnLine SC 1174, wherei....