- (1.) THROUGH this petition under Section 482 CrPC the Petitioners seek to be discharged in Criminal Complaint No. 5654/1 titled "D.C.M. Financial Services Ltd. v. M/s. Sai Moh Auto Links Pvt. Ltd." pending in the Court of the learned Metropolitan Magistrate ('MM'), New Delhi under Section 138 of the Negotiable Instruments Act, 1881 ('NI Act').
(2.) THE aforementioned complaint was filed in respect of the dishonour of a Cheque No.319925 dated 1st November 1998 for a sum of Rs. 1,68,441/-drawn in favour of M/s.DCM Financial Services Ltd. by Sai Moh Auto Links Pvt. Ltd.('SMALPL'). The cheque when presented to the drawer's Bank was dishonoured with the remarks "funds insufficient". The Petitioner No.1 Dinesh Mohindra and Petitioner No.2 Karuna Mohindra have been arrayed in the complaint as accused Nos.3 and 5 respectively. The averments in the Complaint relevant to the petitioners are in paras 13 and 14 which read as under: "13. That the accused No.1 is a company/firm and the accused Nos. 2 to 5 was in charge and was responsible to the accused No.1 for the conduct business of the accused No.1, at the time when the offence was committed. Hence, accused Nos. 2 to 5 along with the accused No.1, is/are liable to be prosecuted and punished in accordance with law by this Hon'ble Court, as provided by section 138 of the N.I. Act, 1881. Further the offence has been committed by the accused No.1. 14. That the accused person(s) has/have committed an offence punishable under section 138 of N.I. Act and the cause of action has arisen in favour of the complainant and against all the accused persons, on the failure of the payment against the cheques presented for honour in the bank, as demanded by legal notice. It is pertinent to mention here that till filing of this complaint before this Hon'ble Court, no payment has been made either in part of full against these abovementioned cheques to the complainant company."
(3.) MR . K.T.S. Tulsi, learned Senior counsel appearing for the Petitioners submits that both these Petitioners were not Directors of SMALPL on the date of the cheque i.e. 1st November 1998. He relies on the certified copy of the Form 32 placed on record which shows that both Dinesh Mohindra and Karuna Mohindra resigned as Directors of SMALPL on 25th December 1997. It is stated that therefore on the date of the commission of the offence neither Petitioner was in charge of the affairs of SMALPL or responsible to it for the conduct of its business as stated in the complaint. Referring to the judgments of the Supreme Court in S.M.S. Pharmaceuticals v. Neeta Bhalla (I) 2005 (8) SCC 89, S.M.S. Pharmaceuticals v. Neeta Bhalla (II) 2007 (4) SCC 70. and DCM Financial Services Ltd. v. J.N. Sareen 2008 (8) SCC 1, it is submitted that no deemed liability in terms of Section 14 NI Act can attach to a Director who was no longer as such on the date of the commission of the offence. Mr. Tulsi also refers to the observations of the Supreme Court in Anil Kumar Sawhney v. Gulsan Rai 1993 (4) SCC 424. where it was held that even a postdated cheque which was not payable on demand till a particular date, was not a cheque in the eyes of law till the date it becomes payable on demand.;