TaxTMI 
TaxTMI 
2022 (4) TMI 61
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....ed 18.01.2019, the learned Court below had taken cognizance of the offence under Section 138 of the Negotiable Instrument Act, 1881, and issued summons against the petitioners. 2. It is submitted at the Bar that all the petitions may be disposed of together by a common judgment & order as the same arisen out of a common order involving the same sets of parties and a common question of law; and accordingly, it is decided to dispose of all the petitions by this common judgment & order. 3. The factual background leading to filing of the present petitions is adumbrated herein below: "The petitioners, namely, Sri Surya Prakash Agarwal & Smti Sangeeta Kejriwal, are the Directors of the petitioner No. 1 company, i.e. Kejriwal Sugar Agencies Pvt. Ltd. The petitioner company and the opposite party/respondent i.e. M/S Gopiram Chetriram, were involved in a business of dealing of Sugar and were indulging in the same since long. In the year 2018, the petitioner company approached the opposite party/respondent to supply 5200 metric tons of sugar and for that, the opposite party/respondent requested the petitioner company for an advance/security of Rs. 10 crores and the petitioner company, on....
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....iii) that the learned Court below did not consider the fact that the petitioners stay outside the territorial jurisdiction of it and without following the law laid down under Section 202 of the Cr.P.C., issued process only after examination of the opposite party under Section 200 of the Cr.P.C.; (iv) that the learned Court below utterly failed to consider the fact that no ingredients as laid down in Section 138 of the Negotiable Instrument Act, 1881, is attracted against the petitioners inasmuch as the petitioners are neither the signatories of the said cheques nor issued the cheques in question; and (v) that the Cheque Nos. 001711 & 001712, dated 30.08.2018, of Rs. 5 crores each, drawn on HDFC Bank, Burra Bazar Branch, Kolkata, were neither issued in connection with any legally enforceable debt/liability owed by the petitioner company to the opposite party nor there was any debt/liability owned by the petitioner company to the opposite party at the time of dishonor of cheques. The cheques, in question, were in the form of security/advance which cannot be termed as legally enforceable debt and using of these cheques cannot attract the ingredients of Section 138 of the the Negot....
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....he cannot be made liable vicariously. To support his contention Mr. Bora has referred three case laws, Samsung India Electronics Pvt. Ltd. Vs. The State of Assam and Ors., reported in 2009 4 GLT 685 and another case law of Hon'ble Supreme Court in Monaben Ketanbhai Shah Vs. State of Gujarat, reported in (2004) 7 SCC 15 and another case law of Hon'ble Supreme Court in N.K. Wahi Vs. Shekhar Singh, reported in (2007) 9 SCC 481. Mr. Bora has also referred another case law of National Small Industrial Cooperative Bank Vs. Ana Singh Pental, reported in (2010) 3 SCC 220 in support of his submission. As parallel proceedings cannot go together, Mr. Bora has contended to allow the petition by setting aside the criminal proceedings under 138 N.I. Act pending before the Court of learned CJM, Tinsukia. 7. Whereas Mr. Z. Kamar, learned senior counsel, assisted by Mr. D. Talukdar, submits that the two cheques, being No. 001711 and No. 001712, were issued by the petitioners in discharge of their legally enforceable debt and the said two cheques were issued on 30.08.2018 and the same was presented with the banker of the respondents on 13.09.2018. But, the same returned dishonoured on the gr....
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....vestigation (CBI) Vs. Arvind Khanna 2019 0 Supreme (SC) 1152, Mr. Kamar submits that High Court is not entitled to go to the minor details of the allegation of the appellant and defence of the respondent that too after cognizance was taken and cannot record finding of several disputed facts. Mr. Kamar also referred one case law Dr. Lakshman Vs. State of Karnataka 2019 0 Supreme SC 1153 to support aforesaid submission. Mr. Kamar further submits that the petitioner Smt. Sangeeta Kejriwal was responsible for conducting day to day business of the accused Company and that the plea of the petitioners that she is not responsible for day to day business of the Company is nothing but a blatant lie. It is further submitted that Smt. Sangeeta Kejriwal took active part in the business transaction and settlement of the account between the parties till issuance of the cheques in question and as such she and the Director are jointly and severely liable for the act of the Company i.e. the accused No. 1. And in support of his submission Mr. Kamar has referred to one case law on Hon'ble Supreme Court of Summy Bhasin Vs. State of NCT reported in 2021 SCC online Delhi 1189. Mr. Kamar under the premise....
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....ble under Section 141 of the Act. A director in a company cannot be deemed to be in charge of and responsible to the company for the conduct of its business. The requirement of Section 141 is that the person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as a fact as there is no deemed liability of a director in such cases. (c) The answer to Question (c) has to be in the affirmative. The question notes that the Managing Director or Joint Managing Director would be admittedly in charge of the company and responsible to the company for the conduct of its business. When that is so, holders of such positions in a company become liable under Section 141 of the act. By virtue of the office they hold as Managing Director or Joint Managing Director, these persons are in charge of and responsible for the conduct of business of the company. Therefore, they get covered under Section 141. So far as the signatory of a cheque which is dishonoured is concerned, he is clearly responsible for the incriminating act and will be covered under sub-section (2) of Section 141." 11. An....
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....ically stated that the petitioner along with accused No. 2 in collusion and in connivance with each other, hatched up a criminal conspiracy against the respondent for making wrongful personal gain and acting upon such conspiracy they used to take advance payment from the complaint in lieu of supply of sugar and by restoring to cheating and foul play, created the huge liability payable to the complainant during the last 4 years and misappropriated the amount of the complainant for their wrongful and personal gain and after repeated request and demand they have arrived at a settlement and agreed to return Rs. 10 crore to the complainant and issued two cheques amounting to Rs. 5 crore each in favour of the complainant against discharge of their liabilities. But, they played foul play with the complainant and both the cheques were dishonoured and they issued the cheques knowing fully well that said cheque will be dishonoured and being the Director of the accused No. 1 Company they have committed the offence of criminal breach of trust and cheating and are liable to be punished accordingly. 13. Thus, it is apparent that a clear averment is made in the complaint that at the time of comm....
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....ion of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings. According to Clause (b), an injunction cannot be granted to restrain any person from instituting or prosecuting any proceeding in a Court not subordinate to that from which the injunction is sought. According to Clause (d) injunction cannot be granted to restrain any person from instituting or prosecuting any proceeding in a criminal matter. In view of the Clause (a), (b) and (d) mentioned in the said Section, a Division Bench of this Court in the case of Aristro Printer Private Limited (supra) has categorically held that injunction cannot be granted to restrain any person from instituting or prosecuting any proceeding in a criminal matter. In holding so this court relied upon a case law of Hon'ble Supreme Court in Cotton Corporation of India Limited v. United Industrial Bank Limited, AIR 1983 SC 1272, where it has been held that:- "The Legislature manifestly expressed its mind by enacting Section 41(b) in such clear and unambiguous language that an injunction cannot be granted to restrain any person, the language takes care of injunction acting in perso....