CRL.M.C./1496/2016 of SANJANA GUPTA Vs STATE OF NCT OF DELHI & ORS

$~10& 11

*IN THE HIGH COURT OF DELHI AT NEW DELHI+CRL.M.C.1496/2016SANJANA GUPTA+CRL.M.C.1496/2016SANJANA GUPTA

Petitioner

Through:Mr. SunilFemandeswithMr. AmavVidyarthi & Ms. Anju Thomas,Advocates.

versus

STATE OF NCT OF DELHI & ORS

Respondents

Through:Mr. RaviNayak,APP for State.Mr. KapilRustagiwith Mr. RohanJaitley,Advocate for R-2 and 3.

+CRL.M.C.1507/2016SANJANA GUPTASANJANA GUPTA

..... Petitioner

Through:

Mr. SunilFemandeswithMr. AmavVidyarthi & Ms. Anju Thomas,Advocates.

versus

STATE OF NCT OF DELHI & ORS

RespondentsMr. Ravi Nayak,APP for State.Mr. Kapil Rustagiwith Mr. RohanJaitley, Advocate for R-2.

Through:

CORAM:

HON'BLE MR. JUSTICE R.K.GAUBA

ORDER%10.09.2018

1.On almost identical set of facts, circumstances and background, thesecondand third respondentshereinhad filed two criminalcomplaintcases(CC No.1405/1/2015and CC No.4380/1/2015)each allegingoffenceunderSection138 ofNegotiableInstmmentsAct, 1988 havingbeen committedonaccountofnon-paymentinspiteofnoticesofthe demandissued and servedCRL.M.C. 1496/2016ConnmatterPage 1 of4

by the second and third respondents (the complainants)in the wake ofdishonourof the cheques referredto as bearingnos.17623 for Rs.20 lakhsand 17612 for Rs.5 lakhs, both dated 01.06.2015, drawn on Axis BankLimited, Prashant Vihar, New Delhi against the account of companydescribed as Jindal Infra Build Private Limited (the fifth and sixthin these Thewas describedinrespondentsrespectivelypetitions). petitionerthe said criminalcomplaintsas an ex-Directorofthe said company(shownin the array as fourth accused),the other privateparty respondentin thesepetitionshavingbeenimpleadedin theircapacityas the Directorsof the saidcompany,shown in the array of complaintas second and third accused.

2.The MetropolitanMagistrate having taken cognizance and, on thebasis of the pre-summoningevidence,issued process includingagainstthepetitioner.Aggrievedby the said summoningorders in each of the saidcomplaints,passed on 16.10.2015and 12.10.2015respectively,the presentpetitionshave been filed invokingthe inherentpowerandjurisdictionofthisCourt under Section 482 of the Code of Criminal Procedure, 1973. Theprime submission raised is that the petitioner, to the knowledge of thecomplainantshad resignedas Directorofthe company(accused)priorto thefiling of the complaint,such resignationhaving been tendered as per thecase evento the issuanceoftheinpetitioner'sprior chequesquestion.

3.The petitions are contestedby the complainantson the ground theform no. DIR-11 submittedto theof RegistrarCompanies,thoughindicatingthe date of filingofthe resignationwith the companyto be 29.05.2015,wasactually submitted later, the real date of such submission having beenwithheld and concealed,the story of resignationhaving been fraudulentlyCRL.M.C. 1496/2016&ConnmatterPage2of4

fabricated so as to create ground for the petitioner to be reheved of herresponsibihty.

4.Upon perusal of the complaints in each case, however, it comes outclearly that the petitionerhad resignedfrom the company(accused)prior tothe presentation of the cheques for collection at the bank and prior to theissuance of the legal notices of demand dated 13.08.2015.This admittedposition is reflected by bare perusal of the demand notices and cannot becontroverted.

5.While dealing with more or less similar questions in batch ofmatters styled as Jwala Devi Enterprises P. Ltd. v. Fadi El Jaouni (2018see Online Del 10030), this Court construing the penal clause contained inSection 138 ofNegotiableInstruments Act, 1988 held, thus:-

"/? is clearfrom theplain reading ofthe above quotedprovisionand is now also well settled that the offence under Section 138of the Negotiable Instruments Act does not stand constitutedmerely upon dishonour ofa cheque. The dishonour ofa chequewhich had been issued by the person (who is sought to beprosecuted) infavour of the complainant must befollowed by anotice of demand within the stipulated period.It is the nonpayment ofthe amount ofthe cheque within the statutory periodafter service of the notice of demand which constitutes theojfence that is punishable under the aforementioned provisionoflaw.''

6.In the above noted fact-situation where it is clear that the petitionerwas not Director of the company at the time of presentation or dishonourof the cheques and not the least at the time of service of notice of demand,/no liability even by invoking the provision contained in Section 141 ofNegotiable Instruments Act, 1988 can be fastened against her.CRL.M.C. 1496/2016& Conn matterPage 3 of4

7.In this viewofthe matter,the petitionsare allowed. The proceedingsagainstthe petitionerarising out of two above-mentionedcomplaintcasespendingwiththe courtofMetropolitanMagistrateare herebyquashed.8.The petitionsare disposedofwiththeseobservations.

SEPTEMBER 10, 2018

srb

CRL.M.C. 1496/2016 & Conn matter

Page 4 of4