TaxTMI 
TaxTMI 
TaxTMI 
2022 (4) TMI 871
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....everal years and the respondent was acting as a commission agent for the petitioners. The first petitioner, who is the authorized person of a Company, viz., M/s.Himaalayaa Agro Tech Limited, to develop his business, on 24.12.2012 sought for a loan of Rs. 20,00,000/- for 12% interest and promised to pay back the same by two months. This was in the presence of Jailani and Ramu @ Ramakrishnan. Even though on several occasions the respondent asked for repayment of loan, the petitioners have not repaid the same. Thereafter, on 24.12.2017 in repayment of loan, a cheque was issued for a sum of Rs. 20,00,000/- drawn on Axis Bank, Ilanji Branch, bearing Cheque No.007780. When the cheque was presented for encashment on 27.12.2017, it was returned wit....
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....w of the erstwhile employees, namely, his uncle Mr.Jailani and his friend Mr.Ramu, started giving trouble. The respondent also lodged complaint before the District Crime Branch, Cuddalore, the first petitioner participated in the enquiry and placed all the facts. The respondent misusing the Company's name swindled huge sums of money, he misused the cheque which was actually given to another person for a different purpose and lodged a false complaint. It is further submitted that the statutory notice was bereft of facts, there is nothing to show as to when and where and in what mode, the loan was availed. The second and third petitioners are only namesake Directors, there is nothing in the complaint to show that the petitioners took part....
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....reported in (2012) 5 SCC 661 and Himanshu vs. B.Shivamurthy and another reported in (2019) 3 SCC 797. Further, she relied on the decisions of this Court in the case of Anandhanarayanan vs. K.Harish reported in 2020 SCC Online Mad 16233 and Balasubba Naidu vs. Balakrishna Naicker and others reported in 2020 SCC Online Mad 6568. She further submitted that the consistent view and dictum of the Apex Court is that in the absence of company arrayed as accused, the prosecution of its Directors and erstwhile Directors cannot be proceeded with. It is a precondition to array the Company as an accused. Admittedly in this case, the Company not arrayed as an accused. 6.The learned counsel for the respondent submitted that in the complaint though the Co....
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....olice, Egmore Police Station, Chennai and another in Crl.O.P.No.28244 of 2017, held that in case of cheating involving dishonour of cheques, held the role of Directors are to be decided during investigation. Hence, he sought for dismissal of this petition. 7.The learned counsel for the petitioners submitted that the respondent's contention is no more res integra for the reason that the decision in Sheoratan Agarwal's case was considered and overruled by the Apex Court in the case of Aneeta Hada and in view of the same, the decision of the Andhra Pradesh High Court and Karnataka High Court cannot be considered. She further submitted that the other citation referred by the respondent in the case of Medekar Intisar Mohamed is a police....
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....h is a three-Judge Bench decision. Thus, the view expressed in Sheoratan Agarwal (supra) does not correctly lay down the law and, accordingly, is hereby overruled. The decision in Anil Hada (supra) is overruled with the qualifier as stated in paragraph 51. The decision in Modi Distillery (supra) has to be treated to be restricted to its own facts as has been explained by us hereinabove." 9.Considering the submissions made and on perusal of the materials, it is not in dispute that the Company, viz., M/s.Himaalayaa Agro Tech Limited was not arrayed as an accused. Further, on perusal of the cheque, it is seen that the cheque was issued by the Company signed by its authorised signatory. In a proceedings under Negotiable Instruments Act the Di....