M/s RPG Infratech v. MBL Infrastructures Ltd. and others, pending before

Criminal Misc. Application No. 741 of 2021 --- Mr. Ashwini Kumar Singh & Anr. v. M/s RPG Infratech Ashish Naithani J. 1 of 2017 under Sections 138 and 141 of the Negotiable Instruments Act, 1881, alleging dishonour of Cheque No. 639991 dated 13.03.2017 for an amount of `1,35,84,099/-, drawn on State Bank of India, Nehru Place Branch, New Delhi, issued by the accused company M/s MBL Infrastructures Ltd. in favour of the Respondent.

3. The cheque, upon presentation, was dishonoured due to insufficiency of funds. A statutory notice under Section 138 of the Negotiable Instruments Act was issued on

25.05.2017, but the payment was not made within the stipulated period. Consequently, a complaint was filed, whereupon cognizance was taken, and summons were issued to all the accused, including the present Applicants, on 25.07.2017.

4. The Applicants were impleaded in their capacity as Directors of the accused company. They contend that they were only non-executive, independent directors, not responsible for day-to-day management or conduct of business, and that their impleadment is not sustainable in law.

5. It is relevant to note that the Applicants, along with Criminal Misc. Application No. 741 of 2021 --- Mr. Ashwini Kumar Singh & Anr. v. M/s RPG Infratech Ashish Naithani J. 2 other co-accused, had earlier approached this Court by way of Criminal Misc. Application (C482) No. 1600 of 2017, which was dismissed vide judgment dated 04.07.2018. The order was challenged before the Hon’ble Supreme Court in SLP (Cri.) No. 7083 of 2018, which was disposed of on

04.09.2018 without interfering with the High Court’s order, clarifying those observations therein would not prejudice subsequent stages of trial.

6. The present second application under Section 482 CrPC is filed on the plea of a change in circumstances, namely, the authoritative pronouncement of the Hon’ble Supreme Court in ‘Chintalapati Srinivasa Raju v. SEBI’, (2018) 7 SCC 443, delivered on 28.08.2018, which clarified the role of non-executive directors and held that they cannot be held liable for the conduct of business of the company in the absence of specific averments as to their involvement.

7. Learned counsel for the Applicants submits that the complaint itself reveals that the company issued the cheque in question M/s MBL Infrastructures Ltd., and there is no specific allegation against the Applicants as to their role in the transaction. It is argued that the Applicants were non-executive, independent directors, not involved in the Criminal Misc. Application No. 741 of 2021 --- Mr. Ashwini Kumar Singh & Anr. v. M/s RPG Infratech Ashish Naithani J. 3 day-to-day conduct of business or financial affairs of the company, and therefore could not be held liable under Section 141 of the Negotiable Instruments Act.

8. He further contended that the learned Magistrate passed the summoning order mechanically, without application of mind, merely on the bald assertion that “all accused were in charge and responsible for the conduct of business and day-to-day affairs of the company.” The absence of particularized allegations against the Applicants renders the complaint unsustainable as against them.

9. Learned Counsel for the Applicants has placed reliance upon the judgment of the Hon’ble Supreme Court in ‘Chintalapati Srinivasa Raju v. SEBI’, (2018) 7 SCC 443, which has unequivocally held that non-executive directors are not liable for the conduct of day-to-day business of a company. It submitted this authoritative pronouncement constitutes a change in circumstances subsequent to the dismissal of the earlier C482 petition filed by the Applicants, thereby entitling them to invoke the inherent powers of this Court afresh.

10. It is further urged that Form-32/DIR-12 filed by Criminal Misc. Application No. 741 of 2021 --- Mr. Ashwini Kumar Singh & Anr. v. M/s RPG Infratech Ashish Naithani J. 4 the Applicants evidences their status as independent directors, which was overlooked by the Magistrate at the stage of summoning and by this Court while dismissing the earlier C482 application. Continuation of proceedings in such circumstances, it is argued, would be an abuse of the process of law.

11. Per contra, learned Counsel for the Respondent submits that an earlier application under Section 482 CrPC, being Criminal Misc. Application No. 1600 of 2017, assailing the very same summoning order and proceedings, was dismissed by this Court on 04.07.2018. The said dismissal was further affirmed when the Hon’ble Supreme Court, in SLP (Cri.) No. 7083 of 2018, declined to interfere. It is thus urged that the present application is not maintainable, as it seeks to re-agitate issues already settled.

12. It is further submitted that the complaint contains clear averments that all directors, including the Applicants, were in charge of and responsible for the conduct of the business of the company at the relevant time. At the stage of summoning, such averments are sufficient to constitute a prima facie case. The question of whether the Applicants were actually responsible is a matter of evidence to be tested Criminal Misc. Application No. 741 of 2021 --- Mr. Ashwini Kumar Singh & Anr. v. M/s RPG Infratech Ashish Naithani J. 5 at trial.

13. Learned Counsel has relied upon ‘N. Rangachari v. Bharat Sanchar Nigam Ltd.’, (2007) 5 SCC 108, and ‘S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla’, (2005) 8 SCC 89, to submit that so long as the complaint asserts that the accused were responsible for the affairs of the company, the Magistrate is justified in issuing summons. The burden lies on the accused to prove at trial that they were not so responsible.

14. It is contended that the reliance on Chintalapati Srinivasa Raju (supra) is misplaced, as that judgment was rendered in the context of SEBI regulations and does not dilute the settled position under Section 141 of the Negotiable Instruments Act. Moreover, the observations therein cannot override the categorical averments in the complaint.

15. Lastly, learned counsel for the Respondent urged that the Applicants cannot be permitted to file successive petitions under Section 482 CrPC merely by citing new judgments. The principle of finality of litigation and the doctrine of constructive res judicata apply. The present Criminal Misc. Application No. 741 of 2021 --- Mr. Ashwini Kumar Singh & Anr. v. M/s RPG Infratech Ashish Naithani J. 6 application deserves dismissal on this ground alone.

16. Heard learned counsel for the Parties and perused the records.

17. The maintainability of a second petition under Section 482 CrPC is contingent upon the Applicants establishing a material change in circumstances or a subsequent legal development that fundamentally alters the basis of the earlier rejection. The Applicants rely on the decision in ‘Chintalapati Srinivasa Raju v. SEBI’, decided on 28.08.2018, to contend that it clarifies the position and liabilities of non-executive, independent directors. The earlier order of this Court dated 04.07.2018 had already taken note of the Applicants’ status as independent directors. It nevertheless concluded that, in view of the specific averments in the complaint and the stage of the proceedings, the matter ought to proceed to trial.

18. The Hon’ble Supreme Court, while declining to entertain the Special Leave Petition on 04.09.2018, did not interfere with the order of this Court. It merely observed that the reasoning adopted therein would not prejudice the defence of the Applicants at a subsequent stage. Such an Criminal Misc. Application No. 741 of 2021 --- Mr. Ashwini Kumar Singh & Anr. v. M/s RPG Infratech Ashish Naithani J. 7 observation cannot be construed as conferring liberty to reopen the same summoning order by way of a successive petition under Section 482 CrPC in the absence of new foundational facts.

19. Even assuming the present petition to be maintainable, on merits, the legal test under Section 141 of the Negotiable Instruments Act turns upon the presence of the essential averment that the accused was “in charge of, and responsible to the company for the conduct of the business of the company” at the time of commission of the offence. In the present case, the complaint avers explicitly that all the accused, including the Applicants, were in charge of and responsible for the conduct of the business and were managing the day-to-day affairs of the company when the cheque in question was issued and subsequently dishonoured.

20. At the stage of summoning, the presence of such an averment is sufficient to meet the statutory threshold, the ultimate proof or otherwise of the allegation being a matter for trial. The earlier order of this Court dated

04.07.2018 proceeded on this very principle, relying, inter alia, upon ‘Sonu Gupta v. Deepak Gupta’, (2015) 3 SCC Criminal Misc. Application No. 741 of 2021 --- Mr. Ashwini Kumar Singh & Anr. v. M/s RPG Infratech Ashish Naithani J. 8 424, to hold that the Magistrate’s prima facie satisfaction was adequate for issuance of process.

21. The reliance placed by the Applicants on DIR- 12/Form-32 and their appointment letters to demonstrate their non-executive, independent status cannot, at this preliminary stage, override the categorical averments contained in the complaint. Such documents may, at best, support a defence that the offence was committed without their knowledge or that they had exercised due diligence. However, Section 141 of the Act expressly contemplates that these matters are to be established by the accused during trial. This Court, in its earlier order, had already observed that the proviso to Section 141(1) permits an accused director to discharge that burden in the evidentiary realm, and that whether the evidence ultimately exculpates the director remains “a matter for trial”.

22. The Respondent’s submission that the averments in the complaint, read in light of the nature of proceedings under Section 138 of the Negotiable Instruments Act, justified the Magistrate’s decision to summon, finds direct support in the order dated 04.07.2018. That order relied upon ‘N. Rangachari v. BSNL’, (2007) 5 SCC 108, and Criminal Misc. Application No. 741 of 2021 --- Mr. Ashwini Kumar Singh & Anr. v. M/s RPG Infratech Ashish Naithani J. 9 ‘S.V. Mazumdar v. Gujarat State Fertilizer Co. Ltd.’, (2005) 4 SCC 173, reiterating that the inherent jurisdiction under Section 482 CrPC is to be invoked sparingly and not so as to pre-empt a trial where the complaint discloses the basic ingredients of the offence. The same reasoning squarely applies to the present petition, which once again assails the very same summoning order on substantially similar assertions.

23. The contention that ‘Chintalapati Srinivasa Raju v. SEBI’, (2018) 7 SCC 443, constitutes a subsequent change in law warranting quashing of the summoning order and proceedings at the threshold does not assist the Applicants. The said judgment was rendered in a distinct regulatory context. Even if its general observations on the role of non-executive directors are noted, the dispositive consideration remains that the complaint contains a specific averment under Section 141. As held in the earlier order, such an averment suffices to carry the matter to trial, unless rebutted on unimpeachable materials, a threshold which the Applicants have not demonstrated to be satisfied in the present case.

24. In view of the foregoing, the Court finds no Criminal Misc. Application No. 741 of 2021 --- Mr. Ashwini Kumar Singh & Anr. v. M/s RPG Infratech Ashish Naithani J. 10 perversity or illegality in the summoning order dated

25.07.2017 as against the present Applicants. No ground is made out for the exercise of the inherent jurisdiction under Section 482 CrPC, which is reserved for exceptional cases to prevent abuse of the process of the Court or to secure the ends of justice. The issues raised by the Applicants, including their status as independent directors and any defence under the proviso to Section 141(1), are left open to be urged before the trial court in accordance with law. ORDER Accordingly, this Court finds that the present petition is a second attempt to assail the same summoning order dated 25.07.2017 and the proceedings of Criminal Case No. 109 of 2017, M/s RPG Infratech v. MBL Infrastructures Ltd. and others, which had already been considered and rejected in Criminal Misc. Application (C482) No. 1600 of 2017. The subsequent dismissal of SLP (Cri.) No. 7083 of 2018 by the Hon’ble Supreme Court further forecloses the matter, subject to the Applicants’ right to raise their defences at trial. This Court therefore holds that no ground is made Criminal Misc. Application No. 741 of 2021 --- Mr. Ashwini Kumar Singh & Anr. v. M/s RPG Infratech Ashish Naithani J. 11 out to invoke the inherent jurisdiction under Section 482 CrPC. The present C-482 application is without merit and is hereby dismissed.

23.09.2025 (Ashish Naithani, J.) Akash AKASH Digitally signed by AKASH DN: c=IN, o=HIGH COURT OF UTTARAKHAND, 2.5.4.20=dae2472c001d56469ea76fc0caa68f48ef73518c148 d140566ab1e26f9cbe61d, postalCode=263001, st=Uttarakhand, serialNumber=27096a1625377537a487dee49224c891823fc 6a0334628b21e516047ed4f22f7, cn=AKASH Criminal Misc. Application No. 741 of 2021 --- Mr. Ashwini Kumar Singh & Anr. v. M/s RPG Infratech Ashish Naithani J. 12