Vinay Kumar @ Vinay Kumar Kedia vs State and Another

Sunil Gaur, J.—Petitioner was the Vice Chairman of M/s. Kedia Distrillaries (hereinafter referred to as accused-company) during the period from October 1997 to March 1998. In Crl.M.C. No. 1227/2007, petitioner is challenging impugned summoning order of 3rd September, 1998, vide which he has been summoned as an accused by the trial court with regard to dishonouring of six cheques of rupees ninety five thousand each issued towards the rent of the premises taken on rent by accused-company. In Crl.M.C. No. 1228/2007 and Crl.M.C. No. 1231/2007, petitioner is challenging impugned summoning order of 3rd September, 1998, vide which he has been summoned as an accused by the trial court with regard to dishonouring of six cheques of rupees fifty five thousand each issued towards the rent of the premises taken on rent by accused-company. In Crl.M.C. No. 1230/2007, petitioner is challenging impugned summoning order of 6th August, 1998, vide which he has been summoned as an accused by the trial court with regard to dishonouring of cheques of rupees fifty five thousand each issued towards the rent of the premises taken on rent by accused-company. In Crl.M.C. No. 1233/2007, petitioner is challenging impugned summoning order of 6th August, 1998, vide which he has been summoned as an accused by the trial court with regard to dishonouring of cheques of rupees forty seven thousand each issued towards the rent of the premises taken on rent by accused-company. In Crl.M.C. No. 1234/2007, petitioner is challenging impugned summoning order of 6th August, 1998, vide which he has been summoned as an accused by the trial court with regard to dishonouring of cheques of rupees thirty seven thousand each issued towards the rent of the premises taken on rent by accused-company.

With the consent of the parties, these petitions have been heard together and are being disposed of together by this common order.

In these petitions, the stand of the petitioner is that at the time of dishonour of the cheques in question, he had ceased to be the Vice Chairman of the accused-company. During the course of the arguments, it was stated that the notice regarding dishonouring of cheques was issued in April, 1998 and infact, the petitioner had ceased to be the Vice Chairman of the accused company on 30th April 1996. To state so, reliance has been placed upon certified copy of Form-32.

Contesting Respondent in response to this petition, has filed a counter by way of affidavit, wherein it is stated that whether the petitioner was the Vice Chairman of the company at the time of dishonour of the cheques in question, is a fact which is required to be proved at trial and is premature for consideration by this Court. It is also stated that at the time of the execution of the rent agreements i.e. in March, 1996, cheques in question were handed over and the petitioner was the Vice Chairman/Director of the accused Company and so he cannot escape the liability for the dishonouring of the cheques in question and that even in January 2005, in the profile of the accused company displayed on the Internet, petitioner is shown as the Director of the accused company. Thus, it is submitted that these petitions deserve dismissal.

A bare reading of Section 138 of the Negotiable Instruments Act reveals that the offence under this Section is made out only when the cheque is returned back unpaid. Therefore, the date of presentation of the cheque is the relevant date and material for the determination of the commission of the offence. Admittedly, the date of dishonouring of cheques in question is 30th March, 1998. I fail to understand as to why certified copy of Form-32 indicating that petitioner had ceased to be Director of the accused company on 30th April 1996 cannot be relied upon. It is not the case of respondent that aforesaid certified copy is forged and fabricated one and, therefore, there is no point in putting petitioner to trial to get this document formally proved.

I am of the considered opinion that the profile of the accused company purportedly displayed on Internet is not at all sufficient to dislodge documentary evidence i.e. certified copy of Form-32 which comes to the rescue of the petitioner as he was not the Director of the accused company on the crucial date i.e. on the date of dishonouring of cheques in question. Therefore, summoning of the petitioner in these seven criminal complaints is bad in law and hence cannot be sustained.

Consequently, impugned order qua petitioner Viney Kumar @ Viney Kumar Kedia S/o Shri Kailashpati Kedia is set aside and these six petitions are accordingly allowed.