TaxTMI 
TaxTMI 
2024 (5) TMI 793
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....itled Asha Hemnani v. Mother's Pride Punjabi Bagh & Ors. (in CRL.M.C. 6096/2022) and Complaint case No. 5501/2019 titled Vinod Hemnani v. Mother's Pride Punjabi Bagh & Ors. (in CRL.M.C. 6097/2022) (hereinafter collectively referred to as the 'Complaint Cases'), filed by the respondent(s) herein, under Section 138 of the Negotiable Instruments Act, 1881 (in short, 'NI Act'). 2. As common questions of law and facts arise in these petitions, and common submissions have been made by the learned counsels for the parties, these petitions are being considered and disposed of by way of this common judgment. 3. To appreciate the submissions made by the learned counsels for the parties, the following background facts leading to the filing of the present petitions deserve notice: a) The above complaint cases have been originally filed by the respondent(s) herein, making 10 (ten) accused including Presidium Eduvision Trust, through its Trustees. b) In the Complaints, it is averred that somewhere in December, 2014, the respective respondent(s)/complainant(s) had contacted either the accused no. 3, that is, Ms.Sudha Gupta, Chairman of Mother's Pride Punjabi Bagh a....
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....an amount and issued the repayment cheques. Accused nos. 1 lo 10 have hatched a conspiracy in connivance of each other against Complainant and cheated him and his family with huge amount, accordingly, Accused are responsible for all the aforesaid acts and deeds. xxxxx 23. That accused nos. 1 and 2 are being run managed by Mothers Pride Education Institution Pvt. Ltd. and accused nos. 3 to 10 are actively involved in handling and is in charge of the day to day affairs and business of accused no. 1 and accused no. 2. Accused nos 3 to 10 have personally entered into transactions and convinced the complainant to enter into the said transaction. Accused nos 1-10 falsely and dishonestly represented and assured the Complainant about the repayment of loan amount vide aforesaid cheque. However, conduct of accused nos 1-10 clearly proves that they have cheated Complainant with malafide intentions and caused huge wrongful losses to Complainant by making false representations and gained wrongful gains for themself. Accused has induced Complainant with his false assurances and representations to enter into the said transaction and to extend the loan facility to accuse....
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....ers in their individual capacity. He submits that, therefore, the complaint(s) against the petitioners are not maintainable and the petitioners cannot be summoned in the same. In support, he places reliance on the judgments of the Supreme Courts in Ashok Shewakramani & Ors. v. State of Andhra Pradesh & Anr., (2023) 8 SCC 473; the judgment of the High Court of Gujarat in Somesh Sarjivan Jain v. State of Gujrat & Anr. Neutral Citation no. 2012:GUJHC:11959; High Court of Madhya Pradesh in Sanjay Singh Bisen v. Devendra Verma, (Order/Judgment dated 02.02.2023 in Criminal Revision no. 2611/2018); Sandeep Sabuu v. Gwalior Vyapar Mela Pradhikaran 2016 SCC OnLine MP 67; and of this Court in Amit Kumar Mishra v. The State Govt. of NCT of Delhi & Anr.2020 SCC OnLine Del 2199. 6. He further submits that merely by amending the complaints and now, in the relevant paragraphs, making averments against inter alia the petitioners, and by merely changing the number of the accused, the respondent(s) cannot be said to have satisfied the requirements of Section 141 of the NI Act. He submits that, therefore, even otherwise the Complaint Cases, as against the petitioners, are liable to be dismissed. ....
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....honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained 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 s....
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....section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.- For the purposes of this section, - (a) "company" means any body corporate and includes a firm or other association of individuals; and (b) "director", in relation to a firm, means a partner in the firm." 16. Section 141 of the NI Act states that where the offence under Section 138 of the NI Act is committed by a company, every person who, at the time the offence was committed, was in-charge and was responsible to the company for the conduct of the business of the company, shall be 'deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly'. Explanation (a) to Section 141 of the NI Act states that for the purpose of Section 141 of the NI Act, the t....
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....y clear and leaves no room for any doubt or ambiguity. There is nothing in Section 138 which may even remotely suggest issuance of notice to anyone other than the drawer. 16. Section 141 states that if the person committing an offence under Section 138 is a company, every Director of such company who was in charge of and responsible to that company for conduct of its business shall also be deemed to be guilty. The reason for creating vicarious liability is plainly that a juristic entity i.e. a company would be run by living persons who are in charge of its affairs and who guide the actions of that company and that if such juristic entity is guilty, those who were so responsible for its affairs and who guided actions of such juristic entity must be held responsible and ought to be proceeded against. Section 141 again does not lay down any requirement that in such eventuality the Directors must individually be issued separate notices under Section 138. The persons who are in charge of the affairs of the company and running its affairs must naturally be aware of the notice of demand under Section 138 of the Act issued to such company. It is precisely for this reason that no n....
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....f the Act. Such Directors who are in charge of affairs of the Company and responsible for the affairs of the Company would be aware of the receipt of notice by the Company under Section 138. Therefore, neither on literal construction nor on the touchstone of purposive construction such requirement could or ought to be read into Section 138 of the Act." 20. The above judgment has been followed by a learned Single Judge of this Court in DSC Ltd. v. Dada Jeetu Buildcon Pvt. Ltd. Neutral Citation no. 2018:DHC:7297, by observing as under: "13. Vicarious liability is created by section 141 as the company being a juristic entity, is run by living persons who are in charge of its affairs and who guide the actions of that company and that if such company is guilty, those who were so responsible for its affairs and who guided actions of such juristic entity must be held responsible and ought to be proceeded against. Persons who are in charge of the affairs of the company and running its affairs must naturally be aware of the notice of demand under Section 138 of the Act issued to such company. That is the reason that no notice is additionally contemplated to be given to such Dire....