- (1.)By this petition filed under Section 482 of Code of Criminal Procedure (hereinafter referred to as Cr. P. C.), the petitioners who are accused nos. 2, 3 and 6 in the Criminal Complaint bearing C.C.No. 4455/2009 seek quashing of the said complaint filed by the complainant Company under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the Act"), pending before the Court of the learned Metropolitan Magistrate, Saket Court, New Delhi.
(2.)Arguing the present petition, the learned counsel for the petitioners, Mr. Gaurav Malhotra, submitted that the accused no. 1 in the complaint, M/s Taurus Confectionery India (P.) Ltd, entered into a leave and license agreement dated 21.08.2007 with the complainant company for taking a shop at "Flamez" Mall at Ludhiana on license basis. Learned counsel further submitted that the said agreement was signed by Ms. Geeta Jain, accused no. 4 in the complaint who is the Regional Manager (North) of the said company. Learned counsel further submitted that the said shop taken on leave and license basis was run by Ms. Geeta Jain who was the sole proprietor of accused no. 5 in the complaint, M/s Ishan Enterprises. Learned counsel also submitted that the monthly license fee of the said premises was being paid by M/s Ishan Enterprises as it was actually running the said shop and also issued various post-dated cheques in favour of the complainant. Learned counsel also submitted that the said shop was licensed in favour of M/s Taurus Confectionery India (P.) Ltd. for a period of nine years but it was agreed between the parties that there shall be a lockin period of three years for which period the licensee would be liable to pay the license fee even if the licensee chooses to vacate the shop before the expiry of the lock-in period of three years. Learned counsel for the petitioners further submitted that the said shop was vacated by M/s Ishan Enterprises on 17.06.2009, i.e., before the expiry of lock-in period of three years and three postdated cheques issued by the said M/s Ishan Enterprises were presented in its bank by the complainant which were returned dishonoured by the banker of the said accused no.5, M/s Ishan Enterprises with the remarks "Funds Insufficient"/"Payment stopped by Drawer". Learned counsel for the petitioners submitted that all the three dishonoured cheques were signed by Ms.Geeta Jain, the sole proprietor of M/s Ishan Enterprises and the petitioners were neither the signatory of the said cheques nor they had any concern with M/s Ishan Enterprises. Learned counsel for the petitioners submitted that petitioner No. 3 is nowhere related with M/s Taurus Confectionery India (P.) Ltd. or even M/s Ishan Enterprises as he only happens to be the husband of Ms. Geeta Jain and therefore cannot be made liable or responsible for the acts committed by the said companies. Learned counsel for the petitioners in support of his arguments, placed reliance on the judgment of the Karnataka High Court in the case of Uppinangady Grama Panchayat, Puttur v. P.Narayana Prabhu, 2006 4 CriCC 316 and on the judgments of this Court in the case of Arsh Electronics Pvt. Ltd. v. Telematica Star Ltd. & Anr., 2010 172 DLT 340 and Rushi International v. State (NCT of Delhi) & Ors., 2010 174 DLT 254.
(3.)Opposing the present petition, the learned counsel for the respondent company submitted that petitioner Nos.1 and 2 were Directors of M/s Taurus Confectionery India (P.) Ltd. and they were looking after day to day affairs of the said company. Learned counsel for the respondent company submitted that the said company had authorized Ms. Geeta Jain, its Regional Manager (North) to execute the leave and license agreement dated 21.08.2007 on behalf of the said company. Learned counsel for the respondent company submitted that in terms of the Para 4.4 of the leave and license deed, the licensee was prohibited from creating, sub-letting or otherwise parting with the possession of the licensed premises but in violation of the said clause 4.4 of the license deed, the accused no. 1 company allowed Ms. Geeta Jain to operate the business under the name and style of M/s Ishan Enterprises in the said shop and pay the monthly license fee towards rent for the said shop. Learned counsel for the respondent company submitted that with a view to maintain business relationship, the respondent allowed Ms. Geeta Jain to operate M/s Ishan Enterprises as franchisee of M/s Taurus Confectionery India (P.) Ltd. but the principal liability to perform the contractual obligation always remained with M/s Taurus Confectionery India (Pvt.) Ltd. Learned counsel for the respondent company submitted that as all the postdated cheques issued by Ms.Geeta Jain as an authorized signatory of M/s Ishan Enterprises were dishonoured therefore, the petitioner nos. 1 & 2 who were directors of the principal company, i.e. M/s Taurus Confectionery India (P.) Ltd. along with Ms. Geeta Jain, the signatory of the dishonoured cheques and petitioner no.3, the proprietor of M/s Taurus Confectionery India (Pvt.) Ltd are liable for committing criminal offence under Section 138 of the Act and they cannot escape the said criminal liability by raising technical pleas. Learned counsel for the respondent company also submitted that the present petition has been filed by the petitioners with dishonest intentions to escape from their criminal liability under Section 138 of the Act and if the present petition, at the instance of the petitioners is allowed, the same will open flood gates for such unscrupulous tenants to shift their criminal liability on the unauthorized Franchisees/Sub-tenants. Based on the aforesaid submissions, the learned counsel for the respondent company urged that the present petition warrants outright dismissal.