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2011 DIGILAW 185 (ORI)

PANKAJ AGARWAL v. DEEPAK GAUD

2011-03-22

I.MAHANTY

body2011
ORDER I. Mohanty, J. - The present revision application under 401 Code of Criminal Procedure has been filed by three Petitioners, namely, Pankaj Agarwal (Petitioner No. 1), Radheshyam Agarwal (Petitioner No. 2) and Laxmi Chand Agarwal (Petitioner No. 3), who are directors of Shree Ganesh Rolling Mill Private Limited, challenging an order of cognizance dated 10.12.2009 passed in I.C.C. Case No. 671 of 2009 for the alleged offence u/s 138 of the Negotiable Instruments Act, pending before the Court of Learned SDJM, Panposh, Rourkela. 2. Mr. Nayak, Learned Counsel for the Petitioners submits that the Petitioners have been impleaded as accused persons in the complaint case by the complainant solely on the ground that they are Directors of the Company and there has been no specific allegation made against them in the complaint petition in regard to any part played by them in the transaction in question. 3. In this regard Mr. Nayak placed reliance on the judgment of the Hon'ble Supreme Court in the case of Central Bank of India Vs. Asian Global Ltd. and Others, . 4. Mr. Jena, Learned Counsel for the Opp. Party strenuously urged that all the Petitioners, are actively involved in running of the business of Shree Ganesh Rolling Mill Private limited and in the complaint petition specifically in paragraph- 'm' thereof it has been asserted as follows: That, the act an attitude of the accused persons who are directly and jointly involved in the concern i.e., SHREE GANESH. ROLLING MILL PVT. LTD. in the capacity of Directors thereof clearly speaks of their evil intention to cheat the Complainant for which they are liable to be prosecuted u/s 429 Indian Penal Code apart from the benevolent provisions of 138 of Negotiable Instruments Act. 5. Apart from the aforesaid assertion, in paragraph-c of the complaint petition the following averments have been made: That while receiving the above materials, the accused person issued a cheque, carrying the signature of accused No. 1, bearing Cheque No. 006777 dt. 7.9.2009 for Rs. 21,00,000 drawn on Bank of Baroda, Rourkela, towards part satisfaction of the materials purchased by them. 6. 7.9.2009 for Rs. 21,00,000 drawn on Bank of Baroda, Rourkela, towards part satisfaction of the materials purchased by them. 6. On hearing the Learned Counsel for the parties and perusing the Judgments cited by the Learned Counsel for the Petitioners, it is clear there from that the issue in question is no more res integra and it has been settled by the Hon'ble Supreme Court in the case of S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla and Another, and consistently followed thereafter by the Hon'ble Supreme Court in the case of N.K. Wahi Vs. Shekhar Singh and Others, & thereafter in the case of Central Bank of India (Supra). 7. In S.M.S. Pharmaceuticals Ltd.'s case the Hon'ble Supreme Court has held that merely being a Director would not make a person liable for an offence that may have been committed by the Company and for launching a prosecution against the Directors of Company u/s 138 read with Section 141 of the 1881 Act, there had to be a specific allegation in the complaint in regard to the part played by them in the transaction in question, It was also stipulated therein that the allegations had to be "clear and unambiguous showing that the Directors were in charge of and responsible for the business of the Company." It is also stated therein that this requirement has been incorporated, in order to discourage frivolous litigation and to prevent abuse of the process of Court and from embarking on a fishing expedition to try and unearth material against the Director concerned. 8. In view of the judgment of the Hon'ble Supreme Court in the case of S.M.S. Pharmaceuticals Ltd., and a series of Judgments thereafter and tested against touch-stone of standard stipulated therein, the averments made against the Petitioners 2 and 3, i.e., Radheshyam Agarwal and Laxmi Chand Agarwal respectively do not meet the requirement of law, inasmuch as no specific allegation has been made against them, apart from the fact that they happen to be Directors of the Shree Ganesh Rolling Mill Private Limited. But in so far Petitioner No. 1 is concerned it has been asserted in the complaint petition at paragraph- 'C' that he is the signatory to the said dishonoured cheque, which is the subject matter of the complaint case. But in so far Petitioner No. 1 is concerned it has been asserted in the complaint petition at paragraph- 'C' that he is the signatory to the said dishonoured cheque, which is the subject matter of the complaint case. Therefore, I am satisfied that there is specific allegation made in he complaint against Petitioner No. 1 and therefore, the prayer on behalf of the Learned Counsel for the Petitioner No. 1 is unacceptable & rejected. 9. Accordingly, the order of cognizance dated 10.12.2009 passed in I.C.C. No. 671 of 2009 against the Petitioner Nos. 2 and 3 i.e., Radheshyam Agarwal and Laxmi Chand Agarwal respectively is quashed, but cognizance taken against Petitioner No. 1-Pankaj Agarwal is affirmed. It is further directed that the Learned SDJM, Panposh to take up the matter expeditiously and dispose of the same, preferably within period of six months from the date of receipt a certified copy of this order. 10. With the aforesaid direction and observation the CRLREV is partly allowed to the extent indicated hereinabove. 11. Issue urgent certified.