-: 1 :-

     IN THE COURT OF SHRI V.P. VAISH, ASJ, ROHINI, DELHI


                                            Criminal Revision No. 22/07
                                 Date of hearing arguments: 18.07.2007


1. Sizzling Crafts Pvt Ltd
   374, 2nd Floor, Kohat Enclave,
   Pitampura, Delhi - 34 through
   its Director Shri J.P. Aggarwal.

2. Shri J.P. Aggarwal S/o Shri Trilok Chand,
   R/o Flat No. 74, MIG DDA Flats,
   Pocket D-10, Sector -7, Rohini, Delhi             ........ Petitioners

     Versus

1. The State (Govt. of National Capital
   Territory) of Delhi

2. Mrs. Kamlesh Garg,
   W/o Sugan Chand Garg,
   C-21, Rashmi Apartments,
   Harsh Vihar, Pitampura, Delhi                      .... Respondents
                    ------------------------------

ORDER

1. The present revision petition is directed against order dated 03.03.2007, passed by Ld. Metropolitan Magistrate, Rohini, Delhi.

2. The backdrop of the present revision petition is that respondent No.2 herein namely Smt. Kamlesh Garg filed a -: 2 :- complaint under Section 138 read with Section 141 of the Negotiable Instruments Act against the petitioners. The case of the respondent No.2 is that petitioner No.2 is the Director of petitioner No.1 and he approached the complainant and requested for a loan of Rs 2 lacs, she gave a loan of Rs. 2 lacs by way of cheque No.59223 drawn on Punjab National Bank, Arya Samaj Road, Rani Bagh, Delhi. In discharge of its liability to repay the loan amount, petitioner No.2 who is responsible for day to day work of the petitioner No.1 company issued two post dated cheques for Rs. One lac each to the complainant and on presentation, both the cheques were dishonoured by the banker of petitioner No.1 with the remarks "account closed". The respondent No.2 herein issued notice dated 08.03.2006 and called upon the petitioners to pay the amount of cheque within 15 days of the receipt of notice, said notice was served on the petitioner No.2 but he failed to repay the amount of the cheques. Thereafter, respondent No.2 filed a complaint. After recording pre-summoning evidence, petitioners were summoned vide order dated 22.04.2006. After hearing arguments on notice, notice under Section 251 Cr.P.C. was given to the petitioners, vide impugned order dated 03.03.2007.

3. Feeling aggrieved by the said order dated 03.03.2007 the petitioners have preferred the present revision petition. I have heard Shri Vinod Kumar Adv for the petitioners and Shri S.K. Attri Adv for respondent No.1. I have also carefully gone through material on record.

4. Ld counsel for the petitioners submitted that petitioner No.1 is a Private Limited Company and there are four other directors besides petitioner No.2 Shri J.P. Aggarwal. The cheques were issued by petitioner No.1 company, petitioner No.2 never issued the cheques in his individual capacity and, therefore, petitioner No.2 alone cannot be held responsible for dishonour of the said cheques. The cheques are signed by two Directors and not by petitioner No.2 alone. He also contented that as per Memorandum and Articles of Association of the petitioner No.1 company, all the Directors are equally and jointly liable for its liability

5. According to Ld counsel for the petitioners all the Directors of the petitioner No.1 Company should have been made as a party. In support of his submissions he had relied upon Judgments in case titled as Smt. Davinder Kaur & Anr Vs. Small Scale Industries Development Bank of India reported as 1998 (3) Crimes 548, U.P. Pollution Control Board Vs. M/s. Modi Distillery & Ors reported as AIR 1988 Supreme Court 128, Indira & Ors Vs. Karthikeyan & Ors reported as II (1995) BC 208 and case titled as Steel Authority of India Ltd Vs. Harbhajan Singh reported as 1999 (4) RCR (Criminal) 4.

6. Ld counsel for the respondent No.2 urged that respondent No.2 / complainant has averred in the complaint that petitioner No.2 -: 4 :- who is Director of petitioner No.1 approached the complainant and requested for loan of Rs. 2 lacs, the complainant gave loan to him, two cheques were issued by petitioner No.1 company through petitioner No.2. He also pointed out that all the Directors of the Company are not responsible. The complainant has mentioned in para No.4 of the complainant that petitioner No.2 is responsible for day to day affairs of petitioner No.1 company.

7. I have carefully considered the submissions made by Ld counsel for both the parties. I have also carefully gone through the Judgments cited by Ld counsel for the petitioners. In my view the Judgments cited by Ld counsel for the petitioners are of no help to the petitioners. In Smt.Davinder Kaur's case (Supra), complaint under Section 138/141 of the Act was filed, two Directors of the Company filed a petition for quashing of proceedings on the ground that they had ceased to directors of company by the date of issuance of cheques. It was held that there were specific allegations in the complaint that the petitioners were assisting Managing Director in running the business of company, they were equally responsible in approaching the complainant for extending facility of direct discounting of bills to the company and the petition was dismissed. The case of U.P. Pollution Control Board (supra) was under Water (Prevention and Control of Pollution) Act. In Indira's case (supra) petition for quashing of complaint under -: 5 :- Section 138/141 of the Act was filed. It was held that as per Section 141 of the Act if a person committing an offence under Section 138 is a company, every person who, at the time the offence was committed, was incharge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence. In Steel Authority of India's case (supra), there was allegation in the complaint that Chairman cum Managing Director, Executive Director, Deputy General Manager, Purchase Officer were incharge of and responsible for conduct of Company's business. It was held that there was sufficient material to proceed against the said accused persons.

8. Section 141 of the Negotiable Instruments Act reads as under:-

"141 Offences by companies - (1) If the person committing an offence under Section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the -: 6 :- commission of such offence."

9. From bare reading of Section 141 of the Act, it is manifestly clear that if any offence is committed by a company, every person who, at the time offence was committed, was incharge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be responsible. Proviso to Section 141 of the Act shows that every person who is a Director or employee of the company is not liable and only such person would be held responsible who was incharge and responsible to the company when the offence is committed. In this regarding reliance can be placed on a Judgment of Apex Court in case titled as N.K. Wahi Vs. Shekar Singh & Ors reported as 2007 (1) Bank CLR 540 (SC).

10. In the instant case respondent No.2 has filed a complaint under Section 138/141 of the Negotiable Instruments Act. The complainant has alleged that petitioner No.2 being Director of petitioner No.1 company approached the complainant and requested for loan, the complainant gave loan to petitioner No.2, cheque was issued by petitioner No.1 through petitioner No.2 and petitioner No.2 is responsible for day to day work of the company. Petitioner No.2 is signatory to both the cheques. In my considered opinion other Directors cannot be impleaded as party at the instance of petitioners, who are accused.

11. For the foregoing reasons, revision petition fails, same deserves to be dismissed and same is hereby dismissed. Trial Court record alongwith copy of this order be sent back. File of revision petition be consigned to record room.

Announced in open Court                        (V.P. VAISH)
Dated: 19.07.2007                        ADDL. SESSIONS JUDGE
                                             ROHINI: DELHI