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2014 DIGILAW 945 (RAJ)

Rama Gupta v. State of Rajasthan

2014-04-15

MAHESH CHANDRA SHARMA

body2014
JUDGMENT 1. - This petition has been filed under Section 482 CrPC. 2. Brief facts of the case are as under:- "Complainant filed a criminal complaint for the offence under Section 138 of N.I. Act against the petitioner and another co-accused persons. The trial court vide order dated 28.2.2012 took cognizance for the offence under Section 138 of N.I. Act against the petitioner and co-accused person. The petitioner and other co-accused person preferred revision petition before Sessions Judge, Alwar, which was transferred to the Court of Addl. Sessions judge No.2, Alwar, who vide order dated 11.7.2013 dismissed the revision petition and affirmed the order of the trial court. Hence, this misc. petition has been filed before this court." 3. Learned counsel for the petitioner has contended that criminal proceedings pending against the petitioner before the trial court is absolutely the abuse of the process of law. He has further contended that the petitioner was not aware about the alleged execution of Memorandum of Understanding dated 6.11.2011 and also for handing over the cheque for Rs. 75.00 lakh. There is no role of the petitioner in entering into alleged transaction. He has further contended that the petitioner neither signed the Memorandum of Understanding dated 6.11.2011 nor petitioner has signed the cheque. Therefore, the petitioner was neither. In char gen or person responsible for the working affairs of the company. He has further contended that cheque in question was issued in favour of the complainant in his name and in the individual capacity, which has been alleged to have been received by the complainant on behalf of the company named M/s. Vibgyor Ceramics Ltd. The petitioner has been impleaded in the present case in her individual capacity. The complainant has failed to establish the role of the accused petitioner as, In charge or responsible to the company for the conduct of the business. He has further contended that he has also submitted in the reply to the notice under Section 138 of the Negotiable Instrument Act that the petitioner has no concern with the affairs of the company, therefore, she cannot be made liable for the affairs of the company. He has further contended that he has also submitted in the reply to the notice under Section 138 of the Negotiable Instrument Act that the petitioner has no concern with the affairs of the company, therefore, she cannot be made liable for the affairs of the company. The cheque was issued by the co-accused Anil Kumar Gupta not in the individual capacity but as the Director of the Company i.e. M/s. CCL International Limited, whereas complainant has not impleaded Company as accused and for fastened any criminal liability upon a Director, company is the necessary party and without this, no liability can be fastened upon the petitioner and co-accused in the individual capacity in the facts and circumstances of the case. The petitioner's name was not mentioned in the Memorandum of Understanding dated 6.11.2011 as Director nor she has signed the MOU and further she is not managing the day to day affairs of the company as such the petitioner is not liable for the payment, hence proceedings pending against the petitioner before the court below or the trial court be set-aside. For this purpose, he has cited the following judgments: (i) K.K. Ahuja v. V.K. Vora and another reported in (2009) 10 SCC 48 (ii) Central Bank of India v. Asian Global Limited and Others reported in (2010) 11 SCC 203 (iii) National Small Industries Corporation Ltd. v. Harmeet Singh Paintal and Another reported in AIR 2010 SC (Supp) 569 (iv) Anita Malhotra (Mrs.) v. Apparel Export Promotion Council & Another reported in (2011) 4 RLW (SC) 3586 (v) SMS Pharmaceuticals Ltd. v. Neeta Bhalla and another reported in (2005) 8 SCC 89 (vi) DCM Financial Services Ltd. v. J.N. Sareen and another reported in (2008) 8 SCC1 (vii) Green earth Asphalt and Power Private Limited v. State of Maharashtra reported in (2008) 8 SCC 278 (viii) Sunil Kumar v. Nahata Fabrics reported in 2006 2 RDD 1135 4. On the other hand, learned PP appearing for the State assisted by counsel for the respondent no.2 have opposed the same. On the other hand, learned PP appearing for the State assisted by counsel for the respondent no.2 have opposed the same. They have contended that on 28.2.2012, the cognizance was taken by the learned Magistrate, which is just and proper, the relevant part of which is reproduced as under: " cgl ij euu fd;k x;k ,oa i=koyh dk voyksdu fd;k x;kA i=koyh ij layXu nLrkostksa ls ifjoknh }kjk izLrqr cgl dh iw.kZ rkbZn gksrh gSA vfHk;qDr dks fn;s x;s uksfVl dh izfr layXu gSA vr% ,slh fLFkfr esa vfHk;qDr 1- vfuy dqekj xqIrk iq= ih ,l xqIrk tkrh egktu fuoklh vkjMhlh&131 jktuxj xkft;kckn 201002 ;w0ih0 Mk;jsDVj esllZ lh lh ,y baVjus'kuy fy0 jft0 vkWfQl 30 Hkkjrh vkfVZLV dkWyksuh eSu fodkl ekxZ] y{ehuxj] nsgyh 110092 kk[kk dk;kZy; lh&42 vkj Mh lh jktuxj xkft;kckn ;wih ( 2 ) Jhefr jek xqIrk iRuh vfuy dqekj xqIrk tkfr egktu] fuoklh vkj Mh lh&131] jktuxj xkft;kckn 201002 ;w0ih0 Mk;jsDVj eSllZ lh lh ,y baVjus'kuy fy0 jft0 vkWfQl 30 Hkkjrh vkfVZLV dkWyksuh eSu fodkl ekxZ] y{ehuxj] nsgyh 110092 kk[kk dk;kZy; lh&42 vkj Mh lh jktuxj xkft;kckn ;w0ih0 ds fo:) /kkjk 138 ,u vkbZ ,DV ds rgr izlaKku fy;k tkrk gSA izdj.k ntZ jftLV~j gksA " Further they have contended that the revisional court vide order dated 11.7.2013 rightly dismissed the revision petition and affirmed the order of the trial court, the relevant part of which is reproduced as under: " eq[; :i ls fuxjkuhdrkZ eqyfteku dk dguk gS fd ftl djkj ds lEcU/k esa mijksDr pSd fn;s x;s Fks og fof/kr% izorZuh; nkf;Ro ds cnys ugha fn;s x;s Fks rFkk mijksDr djkj ds lEcU/k esa Lo;a ifjoknh i{k dks Hkh dbZ 'krsZ iwjh djuh Fkh] tks muds }kjk ugha dh x;hA ,slh fLFkfr esa eqyfteku dh pSd vnk;xh ds lEca/k esa dksbZ ftEesnkjh ugha FkhA ijUrq bu lHkh rF;ksa dks izlaKku dh LVst ij ns[kk tkuk laEHko ugha gS vkSj izlaKku dh LVst ij rks dsoy fopkj.k U;k;ky; ds fy;s ;g ns[kuk i;kZIr gksrk gS fd izFke n'"V;k ekeyk curk gS ;k ugha vkSj bu lc rF;ksa dks ns[kdj v/khuLFk U;k;ky; }kjk lEiw.kZ i=koyh dk voyksdu dj ,oa nLrkostkr dk voyksdu dj tks vkns'k ikfjr fd;k x;k gS og fof/kuqlkj ikfjr fd;k x;k gSA fuxjkuhdrkZ dk ;g Hkh dguk gS fd nksuksa i{kksa ds chp esa fookfnr lEifRr dz; djus dk ,e0vks0;w fnukad 06-11-2011 dks fu"ikfnr fd;k x;k Fkk ftlesa ifjoknh i{k ij Hkh fofHkUu ftEesnkfj;kWa nh x;h Fkh vkSj mu ftEesnkfj;ksa dh ikyuk ifjoknh }kjk ugha dh x;h gSA ijUrq bu lHkh rF;ksa dks izlaKku dh LVst ij fopkj esa ugha fy;k tk ldrk vkSj ;g rF; bl izdkj ds gS] ftl ij nksuksa i{k dh lk{; ysdj gh xq.kkoxq.k ij gh izdj.k dk fuLrkj.k gks ldrk gSA fuxjkuhdrkZ dk ;g Hkh dguk gS fd mijksDr ,e0vks0;w0 dsoy nks dEifu;ksa ds chp esa fu"ikfnr gqvk Fkk vkSj bl lEcU/k esa eqyfteku dh dksbZ O;fDrxr ftEesnkjh ugha gS] ijUrq bl rF; dks Hkh lk{; ds mijkar gh r; fd;k tk ldrk gS] D;ksafd ,e0vks0;w0 fnukad 06-11-2011 dks nks dEifu;ksa eS0 lh0lh0,y0 baVjus'kuy fyfeVsM ,oa eS0 focX;ksj fljSfeDl izk0fy0 ds chp fu"ikfnr gqvk FkkA ijUrq fookfnr pSd fnukad 10-01-2012 vfHk;qDr la[;k 1 vfuy dqekj xqIrk }kjk ';keyky HkkVh dks O;fDrxr gSfl;r ls fn;k x;k gSA ;gkWa ;g Hkh mYys[kuh; gS fd eS0 lh0lh0,y0 baVjus'kuy fyfeVsM ds Mk;jsDVj eqyfteku fuxjkuhdrkZx.k vfuy dqekj xqIrk ,oa jek xqIrk gS] tcfd eS0 focX;ksj fljSfeDl izk0fy0 ds Mk;jsDVj rkjkpUn lksuh] lquhy HkkVh ,oa ';keyky HkkVh gSA " 5. In support of his contentions, he has placed reliance on the following judgment: S.V. Muzumdar and others v. Gujarat State Fertilizer Co. Ltd. And another reported in AIR 2005 Supreme Court 2436 , the relevant para of which is reproduced as under: "8. We find that the prayers before the courts below essentially were to drop the proceedings on the ground that the allegations would not constitute a foundation for action in terms of Section 141 of the Act. These questions have to be adjudicated at the trial. Whether a person is in charge of or is responsible to the company for conduct of the business is to be adjudicated on the basis of materials to be placed by the parties. Sub-section (2) of Section 141 is a deeming provision which as noted supra operates in certain specified circumstances. Whether the requirements for the application of the deeming provision exist or not is again a matter for adjudication during trial. Similarly, whether the allegations contained are sufficient to attract culpability is a matter for adjudication at the trial." 6. I have heard learned counsel for the parties and carefully perused the relevant material on record including the impugned order. 7. Looking to the facts and circumstances of the case and in the light of judgment of Hon'ble Apex Court delivered in the case of S.V. Muzumdar (supra),I do not think it proper to quash the criminal proceedings of Case no. 94/2012 (Shyamlal Bhati v. Anil Kumar Gupta & Another) pending in the court of Judicial Magistrate No.2, Alwar and hence the or. Misc. petition being without any substance, is hereby dismissed. 8. However, liberty is granted to the petitioner to raise all the objections, which he has raised through this petition before the trial court at the appropriate stage of the trial. 9. Stay application also stands dismissed accordingly.Petition dismissed. *******