Nirmal vs Mahadhan Phosphate Pvt. Ltd. And Ors

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.

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'.

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. vs. Neeta Bhalla, 2005(8) SCC 89, Harshendra Kumar D. vs. Rebatilata Koley, 2011(3) SCC 351, A.K. Singhania vs. Gujarat State FERTILIZER Co. Ltd. & Another, AIR 2014 SC 71, K.K Ahuja vs. V.K. Vora & Another, (2009)10 SCC 48. Arguments has been raised by the learned counsel for the petitioner on the aforesaid lines.

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.

Heard the learned counsel for the parties and perused the record.

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 Sec.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."

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:

"यह कि, परिवादी महाधन फास्फेट प्रा.लि. के नाम से एक कम्पनी होकर उसके परिवादी राजेश सुहाने डायरेक्टर है इसी प्रकार आरोपी क्रमांक एक मुबारक स्टील प्रा.लि. एक रजिस्टर्ड कम्पनी होकर आरोपी क्रमांक एक से तीन उसके डायरेक्टर होकर आरोपी क्रमांक एक के दैनंदिन कार्यो एवम व्यवहारों के लिये पूरी तरह से उत्तरदायी एवम जवाबदार व्यक्ति है । इसी प्रकार आरोपी क्रमांक 4 नूर मोहम्मद गौरी पिता हाजी सुलेमान गौरी आरोपी क्रमांक एक के आरोपी क्रमांक 2 से 3 के द्वारा परिवादी से किये गये व्यवहार में जमानतदार Â(ग्यारंटरÂ) है । इसलिये आरोपीगण सभी संयुक्त रूप से व पृथक-पृथक रूप से परिवादी से हुए व्यवहार के लिये पूरी तरह से जिम्मेदार व्यक्ति है।"€

Apart 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:

"यह कि, अनुबन्ध की कण्डिका क्रमांक 11 में यह भी तय हुआ था कि यदि अनुबन्ध दिनांक से 6 माह में शर्तों का पालन नहीं कर सके तो आरोपी द्वारा ली गयी राशि रू. 35,00,000/- पैतिस लाख की अदायगी मय ब्याज के 40,00,000-00 चालिस लाख भुगतान की जावेगी । इस शर्त के पालन में आरोपी क्रमांक एक कम्पनी की ओर से आरोपी क्रमांक 2 आसिफ द्वारा सभी डायरेक्टरों की सहमति से अपने हस्ताक्षरयुक्त एक चेक नम्बर 505005 दिनांक 24-12-12 बैंक आॅफ बड़ोदा सियागंज का रू. 40,00,000-00 का परिवादी को प्रदान किया गया था जिसका संपूर्ण विवरण इस प्रकार हैः-

चैक नं. दिनांक राशि बैंक का नाम पता

505005 24-12-12 40,00,000 बैंक आफ बडोदा"

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.

In view of the aforesaid, this petition having no force, deserves to be and is accordingly hereby dismissed.