TaxTMI 
TaxTMI 
2023 (5) TMI 324
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....M.C. 4378/2019, the petitioners seek quashing of summoning order dated 14.12.2017 passed by learned Metropolitan Magistrate-1, Patiala House Court, New Delhi and proceedings pursuant thereto in Complaint Case No. 6719/2018 titled as 'The Delhi Safe Deposit Company v. IAP Company Pvt. Ltd'. iii. In CRL.M.C. 4379/2019, the petitioners seek quashing of summoning order dated 09.01.2018 passed by learned Metropolitan Magistrate-1, Patiala House Court, New Delhi and proceedings pursuant thereto in Complaint Case No. 6719/2018 titled as 'The Delhi Safe Deposit Company v. IAP Company Pvt. Ltd'. 3. A perusal of the complaints filed under Section 138 of Negotiable Instruments Act, 1881 (hereinafter 'NI Act') reveals that the complainant/respondent i.e. 'M/s. The Delhi Safe Deposit Company' was engaged in the business of financial activities such as giving loans. It was alleged that the accused company had approached the complainant for grant of loan and documents in this regard were executed by petitioners Vipul Kant Upadhyay and Amit Kumar Gupta. The accused company had taken loans from the complainant vide loan agreement no. 3112 dated 23.04.2016 and loan agreement no. 3143 dated 20.09.....
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....ufficient'. The complainant had sent a legal notice dated 01.02.2018 through Speed Post to the accused persons demanding payment of the cheque amount of Rs. 2,33,750/- vide postal receipt dated 06.02.2018 and the notice was served upon the accused, as per Internet Acknowledgment. Having not received any payment from the accused persons, the present complaints were filed by the complainant. Learned Magistrate vide orders dated 09.01.2018 and 21.03.2018 had issued summons against all the accused persons in these cases. 6. Learned counsel for the petitioners argues that the summons have been issued against the petitioners by the learned Magistrate without applying judicial mind. It is stated that petitioners were not concerned with the affairs of the company on the date when the offence was alleged to have been committed. It is also stated that petitioner Amit Kumar Gupta had ceased to act as a Director in the accused company with effect from 17.07.2017, which is much prior to the issuance of cheque in question and its date of dishonor, and he was also not the signatory of the cheque and has been falsely implicated in the impugned complaint. It is further contended that petitioner Vi....
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.... in this section shall apply unless - (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice; in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.-For the purposes of this section, "debt of other liability" means a legally enforceable debt or other liability." 141. Offences by companies. - (1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of....
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....ection (1) and subsection (2) are liable to be proceeded against and also punished upon the proof of their being either in charge of and responsible to the company in the conduct of its business or of their holding of the office and having been guilty of consent, connivance or neglect in the matter of commission of the offence by the company, the person covered by sub-section (1) may, by virtue of the first proviso, escape only punishment if he proves that the offence was committed without his knowledge or despite his due diligence." (Emphasis supplied) 11. Coming to the facts of the case, a perusal of record reveals that the complainant has made specific averments qua the role of petitioners in the commission of offence in question. The allegations against the petitioner Vipul Kant Upadhyay, arraigned as accused no. 2 in the complaints, and petitioner Amit Kumar Gupta, arraigned as accused no. 3 in the complaints are that they both had approached the complainant on behalf of the accused company for the purpose of obtaining loans. As per loan agreement no. 3143 dated 20.09.2016, the accused company through its directors i.e. the aforesaid petitioners had obtained loan to the tun....
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....20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted. 34. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence." (Emphasis supplied) 14. Further, the petitioner Vipul Kant Upadhyay was also the signatory of the cheques in question. As far as law on signatory of a cheque is concerned, it will be appropriate to reproduce the observations of Hon'ble Apex Court in this regard in case of K.K. Ahuja v. V.K. Vohra (2009) 10 SCC 48, which are as under: "20. The position under section 141 of the Act ....
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....e loan agreements, board resolutions and other documents in that regard. 17. As far as petitioner Mahender Singh is concerned, he was appointed as a Director in the accused company on 17.10.2017. The cheques in question in the present petitions were dated 07.11.2017, 26.11.2017 and 26.01.2018, and were dishonored on 08.11.2017, 30.11.2017 and 30.01.2018 respectively. The said petitioner was undisputedly, the Director of the accused company at the time of dishonoring of cheque as well as on the date of issuance of cheques. 18. In such cases, the Hon'ble Apex Court has cautioned against the use of powers under Section 482 Cr.P.C. in case of S.P. Mani & Mohan Dairy (supra) whereby it has been observed as under: "33. Thus, the legal principles discernible from the aforesaid decision of this Court may be summarised as under:- *** (b) It is not necessary to reproduce the language of Section 141 verbatim in the complaint since the complaint is required to be read as a whole; (c) If the substance of the allegations made in the complaint fulfil the requirements of Section 141, the complaint has to proceed in regards the law. (d) In construing a complaint a hyper-technical app....