To substantiate his plea that the petitioner had resigned from the Directorship of the Company with effect from 15.12.2010, reference was made to Form-32 whereby the intimation was purported to have been given to the Registrar of Companies regarding resignation. It is noted that the date of intimation of resignation was not mentioned in the said Form-32.There being nothing on record to substantiate this plea of the petitioner and the date of intimation to the Registrar of Companies being a question of fact; this Court cannot record a finding of fact in this regard. This is a triable issue which has to be proved by the petitioner.
8. Moreover, the liability of the issue of cheque begins from the date of issuance of the cheque in discharge of a liability and not on the date of its presentation. Even if it is presumed that the petitioner had resigned from the company before the presentation of the cheques in question, still he cannot escape from his liability under the Act on account of its dishonour.
Delhi High Court
Munish Soni vs Ravinder Kumar Jain on 23 May, 2012
1. This petition challenges the summoning order dated 28.04.2011 passed by the Ld. M.M. in C.C. No. 2484/11 and C.C.No.2483/11 registered under Section 138 of the Negotiable Instruments Act (herein after referred to as "act").
2. The complaint was filed against M/s Pearl Appliances Pvt. Ltd. and its Directors namely Munish Soni( present petitioner) and Dinesh Soni by the respondent alleging that he supplied iron sheets to the accused company costing around five lakh rupees. It was submitted that in partial discharge of their liability, the present petitioner and accused no. 2 had issued four post dated cheques bearing no. 989167, 421031,421032,421033 for a total amount of Rs. 2,82,000/- drawn on Dena Bank which were dishonored on presentation with remarks "payment stopped by drawer" vide intimation dated 8.02.2011. Consequently after serving legal notice, the complaint was filed.
Crl.M.C.Nos.156/2012 & 157/2012 Page 1 of 4 After recording the finding that a prima facie case was made out against the accused persons, the petitioner was summoned by the ld. M.M.
3. The learned counsel for the petitioner has assailed the summoning order on the sole ground that although he is a signatory of the cheques in question but he had resigned from the post of the Director of accused company with effect from 15.12.2011 i.e. before the presentation of the cheques by the complainant and was not responsible for the conduct of the affairs of the company at the time of dishonoring of the cheques and hence cannot be made liable. Reliance has been placed on form 32 filed before the R.O.C. by the petitioner.
4. On the other hand, the learned counsel for the respondent has contended that the cheques were issued by the petitioner in discharge of a liability and hence he is liable to be prosecuted under Section 138 of the Act. It has further been urged that the liability of the petitioner in respect of the cheques commenced from the time of issuance of the cheques and it is immaterial that the petitioner had ceased to be a Director of the accused company at the time of presentation of the cheques.
5. I have heard the rival submissions and perused the record.
6. It is not disputed that the petitioner was a signatory to the cheques in question. Under Section 139 of the Act a legal presumption is raised in favour of the holder of the cheque that it was given in discharge of an antecedent liability and such presumption can be rebutted only by the drawer of the cheque by adducing evidence. Such presumption is raised against the present petitioner also which can be rebutted by him before the trial Court after adducing evidence in this regard and it is not open for him to out rightly shrug the liability off himself at the initial stage.
Crl.M.C.Nos.156/2012 & 157/2012 Page 2 of 4
7. To substantiate his plea that the petitioner had resigned from the Directorship of the Company with effect from 15.12.2010, reference was made to Form-32 whereby the intimation was purported to have been given to the Registrar of Companies regarding resignation. It is noted that the date of intimation of resignation was not mentioned in the said Form-32.There being nothing on record to substantiate this plea of the petitioner and the date of intimation to the Registrar of Companies being a question of fact; this Court cannot record a finding of fact in this regard. This is a triable issue which has to be proved by the petitioner.
8. Moreover, the liability of the issue of cheque begins from the date of issuance of the cheque in discharge of a liability and not on the date of its presentation. Even if it is presumed that the petitioner had resigned from the company before the presentation of the cheques in question, still he cannot escape from his liability under the Act on account of its dishonour. In the case of National Small Industries Corp.Ltd. Vs. Harmeet Singh Paintal and another [(2010) 3 SCC 330], it has been observed by the Apex Court that :
"25......(vi) If accused is a Director or an officer of a Company who signed the cheques on behalf of the company then also it is not necessary to make specific averment in complaint.
(vii) The person sought to be made liable should be in- charge of and responsible for the conduct of the business of the company at the relevant time."
9. Hence, the contention of the learned counsel for the petitioner that he cannot be made liable as he had resigned from the position of Director of the
Crl.M.C.Nos.156/2012 & 157/2012 Page 3 of 4 accused company before the presentation of the cheque is untenable. In my considerate opinion, a prima facie case is made out against the petitioner and the case cannot be out rightly thrown out at this stage.
10. The inherent power of this cannot be exercised to stifle a legitimate prosecution. In the case of K.M. Mathew Vs. K.A. Abraham & Others [2002(3) JCC 1523], the Hon'ble Supreme Court held that when a Magistrate before issuing process has come to the conclusion that the complaint prima facie makes out the offence, the High Court shall be reluctant in exercising its inherent powers to quash the proceedings. Undisputedly, powers under Section 482 Cr.P.C has to be used sparingly and with great caution and only in those cases where this Court comes to the conclusion that there was manifest injustice or there was abuse of process of the court.
11. In view of the above discussion, the petition being without any merit is
hereby dismissed.
M.L. MEHTA, J.
MAY 23, 2012
ss
Crl.M.C.Nos.156/2012 & 157/2012 Page 4 of 4
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