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2017 DIGILAW 237 (MP)

Nirmal v. Mahadhan Phosphate Pvt. Ltd.

2017-02-14

VED PRAKASH SHARMA

body2017
ORDER : Ved Prakash Sharma, J. 2. This is a petition under Section 482 of the Code of Criminal Procedure, 1973 (for short 'the Code') praying for quashment of criminal complaint preferred by M/s Mahadhan Phosphate Pvt. Ltd. (respondent No.1) against petitioner Nirmal Thaker and respondents No.2-5 for offence under Section 138 of the Negotiable Instruments Act, 1881 with regard to alleged dishonour of cheque issued on behalf of respondent No.1 under the signatures of respondent No.2 for a sum of Rs.40 lacs. 3. As per averments made in the complaint, M/s. Mubarik Steels Pvt. Ltd. (respondent No.2) under an agreement to sale dated 30.06.2012 agreed to sale its steel plant situated at Dewas mortgaged with bank of Baroda for a consideration of Rs.1,61,00,000/- in favour of M/s Mahadhan Phosphate Pvt. Ltd. (respondent No.1) and that as a part consideration, a cheque of Rs.35 lacs was issued by respondent No.1 in favour of respondent No.2 which was credited in the account of respondent No.2. It was further averred that as respondent No.2 could not obtain NOC's from various Departments, therefore, sale could not materialise and the amount of Rs.35 lacs paid by respondent No.1 to respondent No.2 was agreed to return with interest and accordingly, a cheque of Rs.40 lacs was issued on behalf of respondent No.2 under the signatures of respondent No.3 (Asif Noor Mohd. Gauri) with the consent of other Directors including the petitioner in favour of respondent No.1. The further averments have been that the cheque in question on being presented before the concerned bank bounced because of insufficient funds and that the amount under the cheque was not paid despite statutory notice. Respondent No.1/complainant also averred in his complaint that respondent No.2 M/s. Mubarik Steels Pvt. Ltd. along with its Directors including petitioner Nirmal Thaker are responsible for day-to-day business of the company and, Thakre liable to be punished under Section 138 of 'the Act'. 4. Respondent No.1/complainant also averred in his complaint that respondent No.2 M/s. Mubarik Steels Pvt. Ltd. along with its Directors including petitioner Nirmal Thaker are responsible for day-to-day business of the company and, Thakre liable to be punished under Section 138 of 'the Act'. 4. Pursuant to this complaint, summon has been issued to the petitioner, therefore, he by way of this petition prays for quashment of the complaint qua himself on the ground that respondent No.1/complainant has not clearly averred about the role and responsibility of respondent in running the administration and management of the company or its day-to-day affairs and that omnibus allegations have been made in that regard, therefore, in view of the provisions contained in Section 141 of 'the Act' the complaint deserves to be quashed as regards the petitioner. Reliance has been placed on the decision of S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla, 2005(8) SCC 89 , Harshendra Kumar D. v. Rebatilata Koley, 2011(3) SCC 351 , A.K. Singhania v. Gujarat State Fertilizer Co. Ltd. & Another, AIR 2014 SC 71 , K.K Ahuja v. V.K. Vora & Another, (2009)10 SCC 48 . Arguments has been raised by the learned counsel for the petitioner on the aforesaid lines. 5. Per contra, it is submitted by learned counsel for the respondent that specific averments have been made in para-1 of the complaint with regard to role and responsibility of the petitioner in day-to-day affairs of respondent No.2/company, therefore, the prayer for quashment deserves to be dismissed. 6. Heard the learned counsel for the parties and perused the record. 7. As regards Section 141 of 'the Act' which deals with offences by companies, the law is well settled that cognisance cannot be taken against a Director or an officer of the company unless specific averments with regard to his role and responsibility in running the affairs of the company are made in the complaint. 7. As regards Section 141 of 'the Act' which deals with offences by companies, the law is well settled that cognisance cannot be taken against a Director or an officer of the company unless specific averments with regard to his role and responsibility in running the affairs of the company are made in the complaint. In this regard, the proposition of law explained by the apex Court in KK Ahuja's case (supra), runs as under : "20.......(iii) In the case of a Director, Secretary or Manager (as defined in Section 2(24) of the Companies Act) or a person referred to in clauses (e) and (f) of section 5 of Companies Act, an averment in the complaint that he was in charge of, and was responsible to the company, for the conduct of the business of the company is necessary to bring the case under section 141(1). No further averment would be necessary in the complaint, though some particulars will be desirable. They can also be made liable under section 141(2) by making necessary averments relating to consent and connivance or negligence, in the complaint, to bring the matter under that sub-section." 8. Judged in the light of aforesaid legal position a perusal of the complaint, a copy which has been annexed with the petition, reveals that necessary averments have been made in para-1 which runs as under: ^^;g fd] ifjoknh egk/ku QkLQsV izk0 fy0 ds uke ls ,d dEiuh gksdj mlds ifjoknh jkts'k lqgkus Mk;jsDVj gS blh izdkj vkjksih Øekad ,d eqckjd LVhy izk0fy0 ,d jftLVZM dEiuh gksdj vkjksih Øekad ,d ls rhu mlds Mk;jsDVj gksdj vkjksih Øekad ,d ds nSuafnu dk;ksZa ,oa O;ogkjksa ds fy;s iwjh rjg ls mRrjnk;h ,oa tokcnkj O;fDr gSA blh izdkj vkjksih Øekad 4 uwj eksgEen xkSjh firk gkth lqyseku xkSjh vkjksih Øekad ,d ds vkjksih Øekad 2 ls 3 ds }kjk ifjoknh ls fd;s x;s O;ogkj esa tekurnkj XkkjaVj gSA blfy;s vkjksih x.k lHkh la;qDr :i ls o i`Fkd&i`Fkd :i ls ifjoknh ls gq, O;ogkj ds fy;s iwjh rjg ls ftEesnkj O;fDr gSA** 9. Apart from this, further averments have been made in para-3 with regard to consent of all the Directors including the petitioner in issuance of cheque for Rs.40 lacs. Apart from this, further averments have been made in para-3 with regard to consent of all the Directors including the petitioner in issuance of cheque for Rs.40 lacs. Para-3 runs as under: ^^;g fd] vuqcU/k dh df.Mdk Øekad 11 esa ;g Hkh r; gqvk Fkk fd ;fn vuqcU/k fnukad ls 6 ekg esa 'krksZa dk ikyu ugha dj lds rks vkjksih }kjk yh x;h jkf'k :0 35]00]000@& iSarhl yk[k dh vnk;xh e; C;kt ds 40]00]000&00 pkfyl yk[k Hkqxrku dh tkosxhA bl 'krZ ds ikyu esa vkjksih Øekad ,d dEiuh dh vksj ls vkjksih Øekad 2 vkflQ }kjk lHkh Mk;jsDVjksa dh lgefr ls vius gLrk{kj;qDr ,d psd uEcj 505005 fnukad 24-12-2012 cSad vkWQ cM+ksnk fl;kxat dk :0 40]00]000&00 dk ifjoknh dks iznku fd;k x;k Fkk ftldk laiw.kZ fooj.k bl izdkj gS%&** pSd ua0 fnukad jkf'k cSad dk uke irk 505005 24-12-2012 40]00]000 cSad vkWQ cM+ksnk 10. Thus, prima-facie, it cannot be said that necessary averments with regard to role and responsibility of the petitioner in day-to-day affairs of the respondent No.2-company have not been made by the complainant. 11. In view of the aforesaid, this petition having no force, deserves to be and is accordingly hereby dismissed.