CRL.M.C./2588/2011 of SHREE LAXMI TRADING CORPORATION EXPORT (INDIA) & ORS Vs PEC LTD

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CRL.M.C. 2588/2011 & Crl.M.A. No. 9252/2011

SHREE LAXMI TRADING CORPORATION

EXPORT (INDIA) & ORS ..... Petitioners Through: Mr.Garvesh Kabra, Advocate

versus

PEC LTD

Through:

..... Respondent Mr.Sanjeev Narula, Advocate

CORAM:

HON'BLE MR. JUSTICE SUNIL GAUR

% 30.01.2013

Summoning of petitioner as an accused in criminal complaint under Section 138 of The Negotiable Instruments Act, 1881 (Annexure F) is assailed in this petition.

Learned counsel for petitioners at the very outset submits that the plea of cheque in question being security cheque is plea which is required to be determined at trial and permission be granted to petitioner to raise this plea before the trial court. However, learned counsel for petitioner insists that mere bald allegations against petitioners No. 3 to 5 of being in-charge of the firm in conduct of its business by itself is not sufficient to call upon them to face trial of these proceedings.

Learned counsel for petitioner contends that essential averments in the complaint to make petitioners No.3 to 5 vicariously liable are lacking and so, proceedings qua petitioner Nos.3 to 5 deserves to be quashed. In support of the aforesaid submission, reliance is placed upon the following decisions:-

Central Bank of India vs. Asian Global Limited and Others, (2010) 11 SCC 203; National Small Industries Corporation Ltd. vs. Harmeet Singh Paintal and anr., (2010) 3 SCC 330; K.K. Ahuja vs. V.K.Vora and Anr., (2009) 10 SCC 48; N.K. Wahi vs. Shekhar Singh and Ors. (2007) 9 SCC 481; Saroj Kumar Poddar vs. State (NCT of Delhi) & Anr., (2007) 3 SCC 693; Sabitha Ramamurthy and Anr. vs. R.B.S.Channabasavaradhya, (2006) 10 SCC 581; S.M.S. Pharmaceuticals Ltd. vs. Neeta Bhalla and Anr., (2005) 8 SCC 89; and Monaben Ketanbhai Shah and Anr. vs. State of Gujarat and Ors., (2004) 7 SCC 15; State of Orissa vs. Nalinikanta Muduli, (2004) 7 SCC 19; Smt. Saraswathy Amma & Anr vs. M/s. Swil Limited & Anr., 83 (2000) DLT 75; Bank of Rajasthan Ltd. vs. M/s. Sarin & Co., 83(2000) DLT 79 (DB); K.P.G.Nair vs. Jindal Menthol India Ltd., (2001) 10 SCC 218.

–Learned counsel for respondent complainant draws attention of this Court to paragraph nos.2 and 3 of the Complaint (Annexure-F) to assert that the essential ingredients to fasten vicarious liability upon petitioner No.3 to 5 are very much there in the complaint filed and the pre-summoning evidence and so no case for quashing these proceedings is made out.

Reliance is placed upon decisions in R.L.Verma vs.

Crl.M.C. No. 2588/2011

J.K.Verma, 2007 (4) JCC 410; Ramaswamy Athappan vs. Bharti Infotel Ltd., 148(2008) DLT 79; and Nipam Kotwal vs. Dominos Printech India Pvt. Ltd., 146 (2008) DLT 747 to maintain that the question whether person is in-charge of affairs of the company or the firm at the relevant time can only be determined during the course of trial and not at this pre-mature stage of summoning the accused.

Upon hearing and on perusal of the impugned order, the material on record and the decisions cited, I find that when it is averred in the complaint that petitioner No.3 to 5 had also approached the complainant for availing the financial facilities and had actively participated, so prima facie it cannot be said that they were not responsible for the conduct of the business of the firm of which they were partners. However, the question vicarious liability of petitioner No.3 to 5 is required to be determined at trial after the evidence is led and therefore, this question is left open to be considered at the trial.

In view of the aforesaid, I do not find it fit case to quash the impugned summoning order. Accordingly, this petition is dismissed while refraining to express any opinion on the merits lest it may prejudice petitioners at trial.

JANUARY 30, 2013 pkb

(SUNIL GAUR)

Judge