- (1.) THESE instant criminal misc. petitions are filed by the petitioner while challenging the proceedings pending against him in the Court of Metropolitan Magistrate (N.I. Act Cases) No.1, Jodhpur-cum-Additional Civil Judge (Junior Division), Jodhpur (hereinafter referred to as 'the trial court') under Section 138 of the Negotiable Instrument Act, 1881 (hereinafter referred to as 'the N.I. Act') initiated on separate complaints made by the respondent Construction firm in respect of different cheques issued by the Anil Jain, Managing Director of the Company wherein the petitioner is working as Additional Director. As common question of law is involved in all these criminal misc. petitions, all are decided by this common order.
(2.) BRIEF facts of the case are that the petitioner is working as Additional Director in Reflex Energy Ltd., a company dealing in setting up of Solar Power Plant. The respondent, a private limited construction firm, undertook several construction works on behalf of Reflex Energy Ltd. as per the work orders issued by it. The respondent firm has filed a complaint under Section 138 of N.I. Act, 1881 and has alleged that after completion of the construction works, the respondent-firm has raised a bill and sent it to the Reflex Energy Ltd. for which part payments were made to the respondent-firm through account payee cheques and those cheques were cleared, however, for the remaining payment, cheques were issued by the Reflex Energy Ltd. under the signatures of Managing Director, Anil Jain and when the said cheques were presented in the concerned Bank, the same were not honoured due to insufficient fund in the Bank account of Reflex Energy Ltd. It is further stated in the complaint that the respondent-firm had sent notices to the petitioner-firm as well as to the Directors of the Company including the petitioner but despite receipt of the notices by the petitioner and other persons, the payment has not been made and, therefore, he preferred a complaint under Section 138 N.I. Act before the trial court. On receiving the complaint, the trial court after taking cognizance for the offence punishable under Section 138 of N.I. Act against the petitioner and other accused persons and summoned them. The petitioner in compliance of the summons surrendered and the trial court after releasing the petitioner on bail read over him the substance of accusation vide order dated 27.9.2012. The petitioner now being aggrieved with the proceedings against him in respect of the complaints preferred by the respondent-firm has preferred these misc. petitions with the prayer for quashing the proceedings initiated against him.
(3.) LEARNED counsel for the petitioner has contended that the petitioner is not responsible for the conduct and affairs of the company and is also not responsible for the day-to-day management of the Company and, therefore, he cannot be made vicariously liable and cannot be prosecuted for the offence punishable under Section 138 of N.I. Act due to dishonour of cheques issued by the Reflex Energy Ltd. in favour of respondent-firm. It is further contended by learned counsel for the petitioner that the petitioner is a nominee Director in the Bord of Directors of Reflex Energy Ltd. on behalf of Vama Energy Pvt. Ltd., which has invested in the Reflex Energy Ltd. It is argued that the Reflex Energy Ltd. has entered into an agreement dated 17th of Oct., 2011 with Vama Energy Pvt. Ltd. for extending such investment and as per clause 9.2(a) of the said agreement, the investing company Vama Energy Pvt. Ltd. is, therefore, required to appoint its nominee Director on the Board of Reflex Energy Ltd. Learned counsel for the petitioner has invited attention of this Court on the clause 9.2(a) (which is reproduced in the petition) of the agreement entered into between the Reflex Energy Ltd. and Vama Energy Pvt. Ltd. and argued that as per the provisions of said clause, the petitioner being a nominee director on behalf of Vama Energy Pvt. Ltd. is not responsible for day-to-day management of the Reflex Energy Ltd. nor is liable for any failure on the part of said company.;