Wednesday, 6 February 2019

Whether independent directors of company can be summoned as accused in cheque dishonour case?

Upon hearing and on perusal of the impugned complaints,
summoning order and the decision cited, I find that Supreme Court in
Standard Chartered Bank (Supra) has permitted summoning of the
directors of accused-company, who were incharge of day to day business
of the accused-company. Since there are allegations against petitioners of
being responsible for day to day functioning of business of accusedcompany,
therefore, in the considered opinion of this Court, no case for
quashing complaint and summoning order is made out.

 IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Order: January 09, 2019
 CRL.M.C. 3982/2017 & CRL.M.A. 16054/2017

SH SOMENDRA KHOSLA
N SRINIVASA RAO Vs  STATE & ANR.

CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR



1. The above captioned four petitions are directed against criminal
complaint titled ‘JBB Infrastructure Pvt. Ltd. vs. MIC Electronics Limited
and Ors’, filed under Section 138 of Negotiable Instruments Act, 1881, in
which petitioners have been summoned as an accused.
2. Quashing of aforesaid complaints and the summoning order of 16th
August, 2016 is sought on the ground that petitioners are independent

directors and are not incharge of day to day business of the MIC
Electronics Limited.
3. With the consent of learned counsel for the parties, the above
captioned four petitions have been heard together and are being disposed
of by this common order.
4. Learned counsel for petitioners submits that petitioners are
independent directors and are not concerned with day to day business of
MIC Electronics Limited and so, they cannot be summoned in the
complaints in question. To submit so, reliance is placed upon Supreme
Court’s decision Standard Chartered Bank vs. State of Maharashtra &
Ors. (2016) 6 SCC 62.
5. Learned counsel for respondents- Complainant No.2 has drawn
attention of this Court to paragraphs no. 26, 31 and 32 of the decision in
Standard Chartered Bank (Supra) to submit that in the complaints in
question, there are allegations against petitioners being responsible for
day to day functioning/business of accused- company i.e. MIC
Electronics Limited.
6. Upon hearing and on perusal of the impugned complaints,
summoning order and the decision cited, I find that Supreme Court in
Standard Chartered Bank (Supra) has permitted summoning of the
directors of accused-company, who were incharge of day to day business
of the accused-company. Since there are allegations against petitioners of
being responsible for day to day functioning of business of accusedcompany,
therefore, in the considered opinion of this Court, no case for
quashing complaint and summoning order is made out.

7. At this stage, counsel for petitioners has drawn attention of this
Court to power of attorney/authorization given by petitioner- Somendra
Khosla, which reveals that he was aged 71 years in September, 2017 and
is resident of United Kingdom. Attention of this Court is also drawn to
the affidavit of petitioner-N Srinivasa Rao to point out that he was aged
67 years in September, 2017. It is submitted on their behalf that the
petitioners ought to be granted permanent exemption from appearing
before the trial court, as they undertake that their counsel will appear
before the trial court on each and every date of hearing. Learned counsel
for petitioners submits that petitioners shall appear before the trial court if
the order framing Notice under Section 251 Cr. P.C is passed and
thereafter, as and when required by the trial court.
8. In view of aforesaid, the above captioned four petitions are
dismissed while refraining to interfere with the impugned order but
petitioners are permitted to appear through their attorney and counsel
before the trial court on each and every date of hearing with the exception
that petitioners shall appear before trial court when the order framing
Notice is to be pronounced. It is made clear that petitioners shall be filing
application for permanent exemption before the trial court within four
weeks from today alongwith undertaking to the effect that their attorney
alongwith counsel would be appearing before the trial court and petitioner
shall appear in person before the court if the order framing Notice is
pronounced and also when the trial court deems it appropriate to secure
their presence. Needless to say, that this order is in peculiarity of this case
and will not be treated as a precedent.

9. With aforesaid observations, these petitions and the applications
are disposed of.
(SUNIL GAUR)
JUDGE
JANUARY 09, 2019

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