Full Judgment Text
Reportable
* HIGH COURT OF DELHI AT NEW DELHI
+ Crl.M.C. 2290/2008 & Crl.M.A.8531-32/2008
Date of decision: 15.09.2008
# VINOD KUMAR ARORA & ORS. ...... Petitioners
! Through : Mr. S.N. Gupta, Advocate
Versus
$ M/S. ROHIT ADVERTISING SERVICE
..... Respondent
^ Through : Nemo.
%
CORAM:
HON'BLE MS. JUSTICE ARUNA SURESH
(1) Whether reporters of local paper may be
allowed to see the judgment?
(2) To be referred to the reporter or not? Yes
(3) Whether the judgment should be reported
in the Digest ? Yes
J U D G M E N T
ARUNA SURESH, J. (Oral)
1. Present petition is preferred by Vinod Kumar
Arora, Petitioner No.1 and Arora Housing Pvt. Ltd.,
Petitioner No.2 invoking inherent powers of this
rd
court for quashing of summoning order dated 23
Crl. M.C. No. 2290/2008 Page 1 of 10
March, 2007 passed by the Learned Metropolitan
Magistrate upon complaint dated 23.12.2002 under
Sections 138/141 Negotiable Instruments Act
(hereinafter referred to as „N.I. Act‟), filed by the
complainant, respondent Rohit Advertising Service.
2. Respondent company had got published
advertisements for Petitioner No.2 in the
newspapers and issued a bill for Rs.1,35,253/-.
Petitioner No.2 towards the payment of the said
amount issued a cheque of Rs.1,35,008/- dated
14.05.2002 bearing No.273748, drawn on Punjab
and Sind Bank, Rajindra Place, New Delhi in favour
of the respondent. The respondent on 12.11.2002
came to know that said cheque upon presentation
was dishonoured due to „insufficient funds‟.
Subsequently, respondent issued a Legal Notice
dated 23.01.2002 for demand of payment under the
said bounced cheque to Petitioner No.2.
Respondent filed a complaint on 23.12.2002 and
cognizance of the same was taken by the
Magistrate on 19.08.2005 who consequently
summoned Shri Kishan Kumar Arora, Chairman-
Crl. M.C. No. 2290/2008 Page 2 of 10
cum-Managing Director of Petitioner No.2. Since
Kishan Kumar Arora expired during the pendency
of the complaint, the complaint was dismissed by
the Magistrate.
3. Respondent filed a Revision Petition before the
Sessions Court against the dismissal of the
complaint and the Learned Additional Sessions
Judge while allowing the petition on 11.08.2006
remanded back the complaint to the Magistrate for
further action. Consequently, respondent filed a
fresh list of Directors before the lower court and
the Magistrate summoned the present Petitioners
vide order dated 23.03.2007. Aggrieved by the said
order, the present petition has been filed.
4. Mr. S.N. Gupta, learned counsel for the Petitioners
has submitted that in the complaint there are no
allegations against Petitioner No.1 and he was not
the signatory of the impugned cheque and was not
responsible for the discharge of liability of
Petitioner No.2 company. It is further submitted
that Petitioner No.1 was never arrayed as an
Crl. M.C. No. 2290/2008 Page 3 of 10
accused in the complaint and that he has been
summoned by the court only subsequent to the
death of Shri Kishan Kumar Arora, the Managing
Director of Petitioner No.2 and the person
responsible for the day to day business of
Petitioner No.2 company and therefore, the learned
Magistrate committed illegality by summoning
Petitioner No.1 after the death of Shri Kishan
Kumar Arora vide his order dated 23.03.2007. He
has prayed that the complaint qua him and the
summoning order of the court dated 23.03.2007
being illegal be quashed.
5. Respondent company had filed a complaint under
Sections 138/141 N.I. Act against Petitioner No.2
company through its Chairman and Managing
Director Shri Kishan Kumar Arora for having
published certain advertisements in various
newspapers for and on behalf of accused company.
Towards payment of the liability, accused company
issued a cheque for Rs.1,35,008/- dated 14.05.2002
bearing No.273748, drawn on Punjab and Sind
Bank, Rajindra Place, New Delhi in favour of the
Crl. M.C. No. 2290/2008 Page 4 of 10
complainant company. This cheque on presentation
was dishonoured. Consequent thereof complainant
served a notice of demand dated 23.11.2002 upon
the accused company demanding the cheque
amount. The said notice was duly served upon
accused company by UPC as per the averments
contained in para 6 of the complaint. Since accused
company failed to pay the demanded amount of the
impugned cheque, a complaint under Section 138
N.I. Act was filed. It is apparent that none of the
Directors or the Managing Director were sued in
their individual capacity by the complainant. Only
the company was sued through its Managing
Director Shri Kishan Kumar Arora. Shri Kishan
Kumar Arora died during the pendency of the
complaint and the learned M.M. dismissed the
complaint having being abated. Against the order
of the court, a Revision Petition was filed by the
complainant which was allowed by the Revisional
Court on 11.08.2006 and the case was remanded
back to the trial court with the directions to
proceed further in accordance with law.
Crl. M.C. No. 2290/2008 Page 5 of 10
Consequently, the complainant filed a list of
Directors before the learned trial court and vide his
order dated 23.03.2007, the trial court was pleased
to pass the following order:-
“23/3/07 Sh. Dinesh Chand
Sharma Complainant in person.
The case has been filed today
for consideration of application
by way of which a list of
directors was furnished where
names were filed in Record by
the complainant. Admittedly
none of the directors whose
name has been furnished on
Record by way of the application
was arranged as an…..
However, after the death of
main accused Roshan Lal Arora,
the complaint was dismissed as
abated which order was later on
set aside by Sh. Ramesh Kumar
ld. ASJ, Delhi, in Revision
Petition No.16/06 dt. 11/8/06
wherein the court of ld. ASJ has
directed this court to process
further in the case against the
accused company in view of the
same, the accused company
through its present MD
(Managing Director) be
summoned on filing PF/RC
courier Dasti.”
6. Thus, it is clear that the trial court issued summons
for appearance to the accused company to be
served through its present Managing Director.
Crl. M.C. No. 2290/2008 Page 6 of 10
These summons for appearance were received by
Petitioner No.1 and he put in appearance before
the trial court. Admittedly, notice under Section
251 Cr.P.C. has already been framed against the
Petitioners and now the complaint is pending trial
for recording of evidence of the complainant.
7. Petitioner No.1 filed his Affidavit as per the
directions of this court admitting that he was the
Director of the Company at the time of issuance of
the impugned cheque and still continues to be the
Director of the company. However, he is silent if he
after the death of Sh. Kishan Ku mar Arora he
became the Managing Director of the company and
if not who is the Managing Director of the
company. It is not disputed that he is not the
signatory of the cheque. The fact remains that the
company who is a juristic person that is persona in
law cannot be absolved of its liability to pay the
cheque amount which was issued by it through its
the then Managing Director who has since expired.
The court has summoned the company through the
present Managing Director. Under these
Crl. M.C. No. 2290/2008 Page 7 of 10
circumstances, when the liability of the company is
not absolved on the death of the Managing Director
and company is liable to pay the amount of the
impugned cheque to the complainant as claimed in
the complaint, it is irrelevant if in the complaint,
the complainant did not aver that Petitioner No.1
was also responsible for day to day business of the
company being its Director at the relevant time.
Company has to be represented through one of its
Directors.
8. Learned counsel for the Petitioner while referring
to ‘S.M.S. Pharmaceuticals Ltd. v. Neeta
Bhalla and Anr., JT 2005 (8) SC 450’, has
submitted that the complainant had not arrayed
Petitioner No.1 as one of the accused persons
along with the accused company and no
responsibility had been attributed to Petitioner
No.1 in the complaint. The learned M.M. was
wrong when he passed the impugned order which
is bad and is liable to the quashed. However, the
submissions of the learned counsel for the
Petitioners are not forceful to be accepted by the
Crl. M.C. No. 2290/2008 Page 8 of 10
court.
9. In the said case, the complainant had arrayed the
other Directors of the company along with accused
company in the complaint and when the Directors
challenged the summoning order, the court held
that the complainant should have specifically
mentioned in the complaint that all the accused
Directors were responsible for conducting the day
to day business of the company and in the absence
of such averments, the complaint as against the
Directors who were arrayed in their individual
capacity was liable to be quashed.
10. In the present case, Petitioner No.1 has not been
arrayed as co-accused with the company being the
Director of the company and personally liable for
the conducting the business of the company. It is
the accused company which has been sued by the
complainant through its Managing Director. The
order of the trial court clearly indicate that
Petitioner No.1 was not summoned in his individual
capacity by name as director of the company. It
Crl. M.C. No. 2290/2008 Page 9 of 10
was the company who was summoned through its
present Managing Director after the death of Shri
Kishan Kumar Arora.
11. Hence, I find no merits in this petition and the
same is accordingly dismissed in limine.
ARUNA SURESH
(JUDGE)
September 15, 2008
vk
Crl. M.C. No. 2290/2008 Page 10 of 10
* HIGH COURT OF DELHI AT NEW DELHI
+ Crl.M.C. 2290/2008 & Crl.M.A.8531-32/2008
Date of decision: 15.09.2008
# VINOD KUMAR ARORA & ORS. ...... Petitioners
! Through : Mr. S.N. Gupta, Advocate
Versus
$ M/S. ROHIT ADVERTISING SERVICE
..... Respondent
^ Through : Nemo.
%
CORAM:
HON'BLE MS. JUSTICE ARUNA SURESH
(1) Whether reporters of local paper may be
allowed to see the judgment?
(2) To be referred to the reporter or not? Yes
(3) Whether the judgment should be reported
in the Digest ? Yes
J U D G M E N T
ARUNA SURESH, J. (Oral)
1. Present petition is preferred by Vinod Kumar
Arora, Petitioner No.1 and Arora Housing Pvt. Ltd.,
Petitioner No.2 invoking inherent powers of this
rd
court for quashing of summoning order dated 23
Crl. M.C. No. 2290/2008 Page 1 of 10
March, 2007 passed by the Learned Metropolitan
Magistrate upon complaint dated 23.12.2002 under
Sections 138/141 Negotiable Instruments Act
(hereinafter referred to as „N.I. Act‟), filed by the
complainant, respondent Rohit Advertising Service.
2. Respondent company had got published
advertisements for Petitioner No.2 in the
newspapers and issued a bill for Rs.1,35,253/-.
Petitioner No.2 towards the payment of the said
amount issued a cheque of Rs.1,35,008/- dated
14.05.2002 bearing No.273748, drawn on Punjab
and Sind Bank, Rajindra Place, New Delhi in favour
of the respondent. The respondent on 12.11.2002
came to know that said cheque upon presentation
was dishonoured due to „insufficient funds‟.
Subsequently, respondent issued a Legal Notice
dated 23.01.2002 for demand of payment under the
said bounced cheque to Petitioner No.2.
Respondent filed a complaint on 23.12.2002 and
cognizance of the same was taken by the
Magistrate on 19.08.2005 who consequently
summoned Shri Kishan Kumar Arora, Chairman-
Crl. M.C. No. 2290/2008 Page 2 of 10
cum-Managing Director of Petitioner No.2. Since
Kishan Kumar Arora expired during the pendency
of the complaint, the complaint was dismissed by
the Magistrate.
3. Respondent filed a Revision Petition before the
Sessions Court against the dismissal of the
complaint and the Learned Additional Sessions
Judge while allowing the petition on 11.08.2006
remanded back the complaint to the Magistrate for
further action. Consequently, respondent filed a
fresh list of Directors before the lower court and
the Magistrate summoned the present Petitioners
vide order dated 23.03.2007. Aggrieved by the said
order, the present petition has been filed.
4. Mr. S.N. Gupta, learned counsel for the Petitioners
has submitted that in the complaint there are no
allegations against Petitioner No.1 and he was not
the signatory of the impugned cheque and was not
responsible for the discharge of liability of
Petitioner No.2 company. It is further submitted
that Petitioner No.1 was never arrayed as an
Crl. M.C. No. 2290/2008 Page 3 of 10
accused in the complaint and that he has been
summoned by the court only subsequent to the
death of Shri Kishan Kumar Arora, the Managing
Director of Petitioner No.2 and the person
responsible for the day to day business of
Petitioner No.2 company and therefore, the learned
Magistrate committed illegality by summoning
Petitioner No.1 after the death of Shri Kishan
Kumar Arora vide his order dated 23.03.2007. He
has prayed that the complaint qua him and the
summoning order of the court dated 23.03.2007
being illegal be quashed.
5. Respondent company had filed a complaint under
Sections 138/141 N.I. Act against Petitioner No.2
company through its Chairman and Managing
Director Shri Kishan Kumar Arora for having
published certain advertisements in various
newspapers for and on behalf of accused company.
Towards payment of the liability, accused company
issued a cheque for Rs.1,35,008/- dated 14.05.2002
bearing No.273748, drawn on Punjab and Sind
Bank, Rajindra Place, New Delhi in favour of the
Crl. M.C. No. 2290/2008 Page 4 of 10
complainant company. This cheque on presentation
was dishonoured. Consequent thereof complainant
served a notice of demand dated 23.11.2002 upon
the accused company demanding the cheque
amount. The said notice was duly served upon
accused company by UPC as per the averments
contained in para 6 of the complaint. Since accused
company failed to pay the demanded amount of the
impugned cheque, a complaint under Section 138
N.I. Act was filed. It is apparent that none of the
Directors or the Managing Director were sued in
their individual capacity by the complainant. Only
the company was sued through its Managing
Director Shri Kishan Kumar Arora. Shri Kishan
Kumar Arora died during the pendency of the
complaint and the learned M.M. dismissed the
complaint having being abated. Against the order
of the court, a Revision Petition was filed by the
complainant which was allowed by the Revisional
Court on 11.08.2006 and the case was remanded
back to the trial court with the directions to
proceed further in accordance with law.
Crl. M.C. No. 2290/2008 Page 5 of 10
Consequently, the complainant filed a list of
Directors before the learned trial court and vide his
order dated 23.03.2007, the trial court was pleased
to pass the following order:-
“23/3/07 Sh. Dinesh Chand
Sharma Complainant in person.
The case has been filed today
for consideration of application
by way of which a list of
directors was furnished where
names were filed in Record by
the complainant. Admittedly
none of the directors whose
name has been furnished on
Record by way of the application
was arranged as an…..
However, after the death of
main accused Roshan Lal Arora,
the complaint was dismissed as
abated which order was later on
set aside by Sh. Ramesh Kumar
ld. ASJ, Delhi, in Revision
Petition No.16/06 dt. 11/8/06
wherein the court of ld. ASJ has
directed this court to process
further in the case against the
accused company in view of the
same, the accused company
through its present MD
(Managing Director) be
summoned on filing PF/RC
courier Dasti.”
6. Thus, it is clear that the trial court issued summons
for appearance to the accused company to be
served through its present Managing Director.
Crl. M.C. No. 2290/2008 Page 6 of 10
These summons for appearance were received by
Petitioner No.1 and he put in appearance before
the trial court. Admittedly, notice under Section
251 Cr.P.C. has already been framed against the
Petitioners and now the complaint is pending trial
for recording of evidence of the complainant.
7. Petitioner No.1 filed his Affidavit as per the
directions of this court admitting that he was the
Director of the Company at the time of issuance of
the impugned cheque and still continues to be the
Director of the company. However, he is silent if he
after the death of Sh. Kishan Ku mar Arora he
became the Managing Director of the company and
if not who is the Managing Director of the
company. It is not disputed that he is not the
signatory of the cheque. The fact remains that the
company who is a juristic person that is persona in
law cannot be absolved of its liability to pay the
cheque amount which was issued by it through its
the then Managing Director who has since expired.
The court has summoned the company through the
present Managing Director. Under these
Crl. M.C. No. 2290/2008 Page 7 of 10
circumstances, when the liability of the company is
not absolved on the death of the Managing Director
and company is liable to pay the amount of the
impugned cheque to the complainant as claimed in
the complaint, it is irrelevant if in the complaint,
the complainant did not aver that Petitioner No.1
was also responsible for day to day business of the
company being its Director at the relevant time.
Company has to be represented through one of its
Directors.
8. Learned counsel for the Petitioner while referring
to ‘S.M.S. Pharmaceuticals Ltd. v. Neeta
Bhalla and Anr., JT 2005 (8) SC 450’, has
submitted that the complainant had not arrayed
Petitioner No.1 as one of the accused persons
along with the accused company and no
responsibility had been attributed to Petitioner
No.1 in the complaint. The learned M.M. was
wrong when he passed the impugned order which
is bad and is liable to the quashed. However, the
submissions of the learned counsel for the
Petitioners are not forceful to be accepted by the
Crl. M.C. No. 2290/2008 Page 8 of 10
court.
9. In the said case, the complainant had arrayed the
other Directors of the company along with accused
company in the complaint and when the Directors
challenged the summoning order, the court held
that the complainant should have specifically
mentioned in the complaint that all the accused
Directors were responsible for conducting the day
to day business of the company and in the absence
of such averments, the complaint as against the
Directors who were arrayed in their individual
capacity was liable to be quashed.
10. In the present case, Petitioner No.1 has not been
arrayed as co-accused with the company being the
Director of the company and personally liable for
the conducting the business of the company. It is
the accused company which has been sued by the
complainant through its Managing Director. The
order of the trial court clearly indicate that
Petitioner No.1 was not summoned in his individual
capacity by name as director of the company. It
Crl. M.C. No. 2290/2008 Page 9 of 10
was the company who was summoned through its
present Managing Director after the death of Shri
Kishan Kumar Arora.
11. Hence, I find no merits in this petition and the
same is accordingly dismissed in limine.
ARUNA SURESH
(JUDGE)
September 15, 2008
vk
Crl. M.C. No. 2290/2008 Page 10 of 10