Gaurav Mittal v. State NCT Of Delhi & ANR.
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IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 6035/2022 & CRL.M.A. 23657/2022 GAURAV MITTAL .....Petitioner Through:
Mr. Varun Dev Mishra, Ms. Mrinmoi Chatterjee & Mr. Kirti Lal, Advocates versus STATE NCT OF DELHI & ANR.
.....Respondents Through:
Mr. Satinder Singh Bawa, APP for the State Mr. Ranjan Kumar Rai & Mr. Navneet Kumar Jha, Advocates for R-2
CORAM:
HON'BLE MR. JUSTICE AMIT MAHAJAN
O R D E R
% 21.11.2024 1.
The present petition is filed challenging the summoning order dated 11.02.2021, passed by the learned Metropolitan Magistrate (MM) (NI Act)-05, South-West District, Dwarka Courts, New Delhi, pursuant to which the petitioner was summoned in Ct. Cases 13595, 13597-2020, filed by Respondent No. 2 and Ms. Swati Jain respectively, under Section 138 and 142 of the Negotiable Instruments Act, 1881 (NI Act). 2.
The subject cheques were issued by the company, namely, CHD Developers Ltd. The petitioner is the Authorized Signatory cum Managing Director of the accused company. 3.
The only ground on which the petitioner challenges the summoning order is that the accused company has not been named as an accused in the complaint (Ct. Case 13595/2020). 4.
It is a contention of the petitioner that to fasten a vicarious liability when a company has committed an offence, it is essential to make the company a necessary party to the complaint.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
5.
The learned counsel for the petitioner submits that the statutory notice was also not issued to the accused company. 6.
When an offence under Section 138 of the NI Act is committed by the company, every person, who at the time when the offence was committed, was in-charge of or was responsible for the conduct of the business of the company as well as the company, shall be deemed to be guilty of offence and shall be liable to be proceeded against and punished.
7.
There is not cavil that in the absence of the company being arrayed as an accused, the complaint against the persons allegedly responsible for the conduct of the business of the company, is not maintainable.
8.
I have perused the statutory notice and the complaint filed by Respondent No. 2.
9.
The title of the complaint indicates that the accused company has been referred to as accused. The title states Sandeep Jain ... Complainant v. CHD Developers Ltd Through Its Directors ... Accused. The Memo of Parties filed along with the complaint also mentions CHD Developers Ltd. as accused. 10.
The pleadings in the complaint also refer to CHD Developers Ltd. as accused company though in some paragraphs of the complaint, it is mentioned that the accused company in discharge of contractual liability issued cheques through Accused No. 1 (the petitioner herein) as Authorized Signatory / Managing Director.
11.
The contention of the petitioner is that since the Accused No. 1 is mentioned as the Authorized Signatory, therefore, the company has not been named as accused.
12.
The same appears to be a typographical and inadvertent The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
error, which could have happened due to the drafting error of the learned counsel who filed the complaint. However, once a company has been mentioned as accused company in the complaint and is also referred as accused in the Memo of Parties and the case title, the said error is not fatal. 13.
It is pointed out that an amended Memo of Parties was also filed before the learned Trial Court. As noted above, the Memo of Parties originally filed though mentioned CHD Developers Ltd. as accused, however, no number was mentioned in front of its name. The said error was corrected by filing an amended Memo of Parties.
14.
The perusal of the legal notice also indicates that the notice was issued to Mr. Gaurav Mittal, the Authorized Signatory / Managing Director of the accused company and other Directors. It was also mentioned alongwith his name that the registered office of the company is 201, Radha Chambers, Plot No.19-20, G Block Community Centre, Vikaspuri, New Delhi- 110018. 15.
The mandatory requirement in terms of Section 138 of the NI Act is that the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque. 16.
The case of the petitioner is not that the accused company had not received the notice or was not aware of the notice, but is that the notice does not separately mentions its name as one of the addressee.
17.
In the present case, it is not disputed that the notice was in fact received by the Authorized Signatory / Managing Director and the other Directors. The notice was served at the registered office of the accused company, CHD Developers Ltd. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
18.
Thus, it cannot be contended that the notice in writing demanding the payment of the cheque(s) amount was not served on the accused company, CHD Developers Ltd. Only a bald averment has been made that the notice in writing making a demand of the cheque(s) amount was not made on the accused company. Not mentioning the name of the accused company in the notice when the same was addressed to the Authorized Signatory / Managing Director and other Additional Directors of the company and was served at the registered office as well as the corporate office of the company, in my opinion, will not make the notice defective.
19.
In view of the above, this Court finds no merit in the present petition.
20.
The present petition is, therefore, dismissed. Pending application(s) also stand disposed of.
21.
The parties are at liberty to take all arguments before the learned Trial Court.
AMIT MAHAJAN, J NOVEMBER 21, 2024 / 'Aman'
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.