Mr. Amarjit Singh Dulat & Ors vs M/S Kotak Mahindra Bank Ltd. & Ors on 31 July, 2025

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Delhi High Court

Mr. Amarjit Singh Dulat & Ors vs M/S Kotak Mahindra Bank Ltd. & Ors on 31 July, 2025

Author: Neena Bansal Krishna

Bench: Neena Bansal Krishna

                          *      IN THE HIGH COURT OF DELHI AT NEW DELHI
                          %                                             Reserved on: 1st May, 2025
                                                                    Pronounced on: 31st July, 2025

                          +             CRL.M.C. 4373/2018 & CRL.M.A. 30916/2018
                              1. MR. AMARJIT SINGH DULAT
                                 S/o Lt. Sh. Shamsher Singh Dulat
                                 R/o: 57, Friends Colony,
                                 New Delhi - 110065                             .....Petitioner No. 1

                              2. MR. SANJAY MOHAN LABROO
                                 S/o Sh. B.M. Labroo
                                 R/o: 6, Green Avenue Lane,
                                 Off Green Avenue
                                 Kishangarh, New Delhi-70                       .....Petitioner No. 2

                              3. MR. AMARENDRA PRATAP SINGH,
                                 S/o Lt. Sh. Mahendra Pratap Singh
                                 R/o: Flat No. B-33, IDC Apartment,
                                 Sector 11, Opp. Sec 11 Metro Station,
                                 Dwaraka, New Delhi - 110075                    .....Petitioner No. 3

                              4. MR. RAJEEV RANJAN VEDERAH
                                 S/o Lt. Sh. Jagdish Chand Vederah
                                 R/o: 47, Paschimi Marg,
                                 Vasant Vihar, New Delhi-110057                 .....Petitioner No. 4

                              5. GAUTAM THAPAR
                                 S/o Sh. Brij Mohan Thapar
                                 E-16, Pushpanjali Farms
                                 Bijwasan, New Delhi- 110061                    .....Petitioner No. 5

                              6. MR. BHASKARAN NAYAR VENUGOPAL,
                                 S/o Sh. Bhaskaran Moothahu Bhaskaran Nayar
                                 R/o: C-2, 2nd Floor, Jeevan Jyoti,
                                 Setalward Lane, Nepean Sea Road
                                 Mumbai - 400036                                ....Petitioner No. 6


Signature Not Verified
Signed By:ANIL            CRL.M.C.4373/2018 & 2693/2019                                  Page 1 of 29
KUMAR BHATT
Signing Date:31.07.2025
19:25:28
                                                           Through:   Mr. Mukul Gupta, Senior Advocate
                                                                     with Mr. Surender Kumar Gupta,
                                                                     Mr.Sumit Mishra, Ms. Muskan Gupta
                                                                     and Ms. Mokshita Sharma, Advocates
                                                          versus

                             1. M/S KOTAK MAHINDRA BANK LTD.
                                Through it‟s Authorized Representative
                                Having its registered office at 27 BKC,
                                C-27, G-Block, Bandra Kurla Complex,
                                Bandra (East), Mumbai-400051.
                                Having its Branch office at 1/11
                                First floor, East Patel Nagar,
                                New Delhi-110008                                   .....Respondent No. 1

                             2. M/S BALLARPUR INDUSTRIES LIMITED
                                Having its registered office at PO:
                                Ballarpur Paper Mills, Chandrapur,
                                Ballarpur-442901
                                Also having address at:
                                First India Place,
                                Tower C, Mehrauli Gurugram Road,
                                Gurugram-122002                     .....Proforma Respondent No. 1

                             3. MR. MAHAJAN RAM RANA
                                S/o Lt. Sh. Rohan Lai Rana
                                R/o: First India Place,
                                Tower C, Mehrauli Gurugram Road,
                                Gurugram-122002                  .....Proforma Respondent No. 2

                             4. MR. NAKUL KHANNA
                                S/o Lt. Sh. S.D. Khanna
                                R/o: First India Place,
                                Tower C, Mehrauli Gurugram Road,
                                Gurugram-122002                            ...Proforma Respondent No. 3

                             5. MR. BHUTHALINGAM HARIHARAN


Signature Not Verified
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KUMAR BHATT
Signing Date:31.07.2025
19:25:28
                                  S/o Lt. Sh. Harisharan Bhuthalingam
                                 R/o: Flat No. 602 B
                                 The Mangolias, DLF Golf Links
                                 DLF City, DLF Phase-V
                                 Gurugram-122009                     ....Proforma Respondent No. 4

                                                          Through:   Mr. Ravi Gupta, Senior Advocate
                                                                     with Mr. Mahip Datta Parashar and
                                                                     Ms. Sanya Lamba, Advocates for R-1

                          +      CRL.M.C. 2693/2019, CRL.M.A. 10777/2019 & CRL.M.A.
                                 36786/2019

                                 BHUTHALINGAM HARIHARAN
                                 S/o Lt. Sh. Harisharan Bhuthalingam
                                 R/o: Flat No. 602 B
                                 The Mangolias, DLF Golf Links
                                 DLF City, DLF Phase-V
                                 Gurugram-122009                                      .....Petitioner
                                                    Through: Mr. Mukul Gupta, Senior Advocate
                                                                 with Mr. Surender Kumar Gupta,
                                                                 Mr.Sumit Mishra, Ms. Muskan Gupta
                                                                 and Ms. Mokshita Sharma, Advocates
                                                    versus

                              1. M/S KOTAK MAHINDRA BANK LTD.
                                 Through it‟s Authorized Representative
                                 Having its registered office at 27 BKC,
                                 C-27, G-Block, Bandra Kurla Complex,
                                 Bandra (East), Mumbai-400051.
                                 Having its Branch office at 1/11
                                 First floor, East Patel Nagar,
                                 New Delhi-110008                                  .....Respondent No. 1

                              2. M/S BALLARPUR INDUSTRIES LIMITED
                                 Having its registered office at PO:
                                 Ballarpur Paper Mills, Chandrapur,
                                 Ballarpur-442901


Signature Not Verified
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KUMAR BHATT
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                                  Also having address at:
                                 First India Place,
                                 Tower C, Mehrauli Gurugram Road,
                                 Gurugram-122002                  .....Proforma Respondent No. 1

                             3. MR. MAHAJAN RAM RANA
                                S/o Lt. Sh. Rohan Lai Rana
                                R/o: First India Place,
                                Tower C, Mehrauli Gurugram Road,
                                Gurugram-122002                  .....Proforma Respondent No. 2

                             4. MR. NAKUL KHANNA
                                S/o Lt. Sh. S.D. Khanna
                                R/o: First India Place,
                                Tower C, Mehrauli Gurugram Road,
                                Gurugram-122002                     ...Proforma Respondent No. 3

                             5. MR. SANJAY MOHAN LABROO
                                R/o: 6, Green Avenue Lane
                                Off Green Avenue, Kishangarh,
                                New Delhi - 110070            ....Proforma Respondent No. 4

                             6. MR. RAJEEV RANJAN VEDERAH
                                R/o: 47, Paschimi Marg
                                Vasant Vihar
                                New Delhi - 110057       ....Proforma Respondent No. 5

                             7. MR. GAUTAM THAPAR
                                R/o: E-16, Pushpanjali Farms
                                Bijwasan
                                New Delhi-110061                   ....Proforma Respondent No. 6

                             8. MR. AMAIJIT SINGH DULAT
                                R/o: 57, Friends Colony,
                                New Delhi - 110065                 ....Proforma Respondent No. 7

                             9. MR. AMARENDRA PRATAP SINGH,
                                S/o Lt. Sh. Mahendra Pratap Singh


Signature Not Verified
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KUMAR BHATT
Signing Date:31.07.2025
19:25:28
                                   R/o: Flat No. B-33, IDC Apartment,
                                  Sector 11, Opp. Sec 11 Metro Station,
                                  Dwarka, New Delhi - 110075            ....Proforma Respondent No. 8

                               10. MR. BHASKARAN NAYAR VENUGOPAL,
                                   S/o Sh. Bhaskaran Moothahu Bhaskaran Nayar
                                   R/o: C-2, 2nd Floor, Jeevan Jyoti,
                                   Setalward Lane, Nepean Sea Road
                                   Mumbai - 400036                    ....Proforma Respondent No. 9

                                                          Through:   Mr. Ravi Gupta, Senior Advocate
                                                                     with Mr. Mahip Datta Parashar and
                                                                     Ms. Sanya Lamba, Advocates for R-1

                          CORAM:
                          HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
                                                          J U D G M         E N T
                          NEENA BANSAL KRISHNA, J.

1. The aforesaid two Petitions under Section 482 of Code of Criminal
Procedure, 1973 have been filed seeking quashing of CC No. 11997/2017
and the Summoning Order dated 09.08.2017, for the Offence under Section
138
read with 141 Negotiable Instruments Act (NI Act).

2. Briefly stated, the Complainant/Kotak Mahindra Bank Ltd. has its
registered office at BKC, Bandra, Mumbai. Mr. Pranav Kumar, has been
authorized, vide letter dated 24.08.2016, by the Board of Directors of the
Bank to sign, verify and file on behalf of the Complainant.

3. According to the Complainant, Accused No. 1 M/s Ballarpur
Industries Ltd through its Directors No. 4 to 12 and its authorised signatories
Accused no. 2/Mr. Mahajan Ram Rana and Accused no. 3/Mr. Nakul
Khanna, approached the Complainant requesting for funding facilities and

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agreed to abide by the terms and conditions for all such facilities. After a
series of discussions, the Complainant acceded to the request of the Accused
and agreed to sanction Financial Facilities in the form of WCDL and other
related facilities.

4. Loan Agreement was signed and executed by Accused No. l in respect
of the said Facilities confirming the terms and conditions mentioned therein.
All the accused persons also executed various other Loan documents.
Further, it is averred that all the Members of the Board of Accused No. 1
were fully aware of and were kept abreast of all such facilities, documents,
sanctions etc. Further, Accused No. 1 had from time to time, also passed
several Board Resolutions thereby inter-alia authorizing Accused No. 2 to
12 to execute and deliver on behalf of Accused No. l, all such Loan Facility
documents as were necessary for the said Loan Facilities.

5. The Complainant disbursed Rs.1,57,36,00,000/- pursuant to these
facilities. There was no dispute regarding the Terms and Conditions
pertaining to the said financial facilities sanctioned to Accused No. l and all
the Accused never raised any grievance about the same.

6. Thereafter, there were several irregularities in the functioning of the
Loan account of the Accused No. l. In spite of repeated requests and
reminders from Complainant, all the accused failed and neglected to pay the
legitimate amounts due and payable to the Complainant.

7. There were several discussions with Accused No.2 to 3 as the
Authorized Signatories and Representatives and 4 to 12 as Directors of
Accused No. l. The Accused persons assured that their Account will be
regularised at the earliest.

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KUMAR BHATT
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8. The Accused No. 2 & 3 towards part payment of outstanding dues,
issued two impugned cheques, bearing No. 062122 dated 18.04.2017 for
Rs. 10,00,00,000/- and No. 062123 dated 28.04.2017 for Rs. 9,84,73,271/-,
in favour of the Complainant, with an assurance that the same would be
honoured on its presentation.

9. However, on presentation, the impugned cheques were returned
dishonoured vide Return Memo dated 30.05.2017 for the reason “funds
insufficient”. It is submitted that all the Accused persons, at the time of
issuing the impugned cheques, knew that they had no sufficient funds in
their Account.

10. It is asserted that the Accused persons had fraudulently induced the
Complainant to extend the said financial services on the pretext of paying it
back, as per the agreed terms and conditions. This was all done by the
Accused persons with intent to cheat the Complainant.

11. The Complainant served a Legal notice dated 20.06.2017, despite
which the Accused have failed to make payment of the Cheques amount
within the statutory period of 15 days, and thus, committed an offence under
Section 138 NI Act.

12. Thus, the Complainant under Section 138 NI Act was filed.

13. The Ld. MM summoned all the accused except Sh. Ashish Kumar
Guha/Accused No.4 and Ms. Nandni Adya/Accused No.9, i.e. Accused no.1
/M/s Ballarpur Industries Ltd, Accused no. 2/ Mr. Mahajan Ram Rana,
Accused no. 3/ Mr. Nakul Khanna, Accused no. 5/Mr Sanjay Mohan
Labroo, Accused no. 6/Mr. Rajeev Ranjan Vederah, Accused no. 7/Mr.
Gautam Thapar, Accused no. 8/Mr. Bhuthalingam Hariharan, Accused no.
10/Mr. Amarjit Singh Dulat, Accused no. 11/Mr. Amaarendra Pratap Singh,

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and Accused no. 12/Mr. Bhaskaran Nayar Venugopal, vide Order dated
09.08.2017.

14. In Crl. M.C. 4373/2018, the Petitioner no. 1/Mr. Amarjit Singh
Dulat (Accused no. 10), Petitioner 2/Mr. Sanjay Mohan Labroo (Accused
No. 5) & Petitioner no. 3/Mr. Amaarendra Pratap Singh (Accused no. 11)
have claimed that they are independent Directors in the Company.

15. Petitioner No. 4/Mr. Rajeev Ranjan Vederah (Accused no. 6) &
Petitioner no. 5/Mr. Gautam Thapar (Accused no. 7) have asserted to be
non-Executive directors.

16. Further, Petitioner no. 6/Mr. Bhaskaran Nayar Venugopal (Accused
no. 12), was LIC‟s Nominee Director who ceased to be Director w.e.f.
03.04.2018.

17. The Petitioners, aggrieved by the filing of the Complaint and the
summons issued, have sought to challenge the summoning Order on the
ground that the Ld. MM failed to appreciate that a Non-Executive Director
is no doubt a custodian of the governance of the Company, but is not
involved in the day-to-day affairs of the running of its business and only
monitors the Executive activity. It is submitted that they cannot be held
liable under Section 141 NI Act which binds only the persons responsible
for the affairs of the Company.

18. In Crl. M.C. 2693/2019, Petitioner/Mr. Bhuthalingam Hariharan
(Accused no. 8) it is asserted that he is a Director of the Accused Company,
but is not the signatory to the cheques in question. Moreover, merely
because an individual is a Director of a Company, does not make him liable
for offences under NI Act unless there is some material to show that he in
charge and responsible for the conduct of business of the Company. Mere

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bald assertion that the Petitioners were responsible for day to day affairs, is
not enough to attract provisions of NI Act unless it is explained as to how
and in what manner Petitioners are in charge of and responsible for conduct
of the business of the Company.

19. Section 141 NI Act is only applicable to a person who is actively
engaged with the day-to-day affairs of the Company and is responsible for
the conduct of its business at the time of commission of the offence. It is in
contravention of law that simply because an individual is a Director of a
Company, it does not ipso facto mean he is liable under NI Act as not every
person can be brought within the ambit of Section 141 NI Act.

20. The learned counsel for the Petitioner/Mr. Bhuthalingam has
submitted that the summons deserves to be quashed on the ground that
BILT has undergone CIRP, as National Company Law Tribunal, Mumbai
vide Order dated 17.01.2020, has admitted the Application of a Financial
Creditor of the Accused Company/BILT, for appointment of an Interim
Resolution Professional (IRP) to administer the Accused Company.

21. Complainant/Bank had availed the remedy under the IBC and filed its
Claim before the IRP, which now forms part of the Resolution Plan of the
Accused Company, which came to be approved by NCLT on 31.03.2023.
The Complainant/Bank would therefore, be paid in terms of the Approved
Resolution Plan.

22. Thus, the present proceedings qua the Petitioner/Mr. Bhuthalingam
ought to end with resolution of debts of the Company i.e., BILT. It is stated
that the Petitioner has been arrayed as accused only because he was one of
the Directors of BILT and for no other reason.

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23. Further, despite the fact that all the Petitioners/Accused are residing
outside the territorial jurisdiction of the Ld. MM., the Impugned Order was
passed without following the procedure established under Section 202
Cr.P.C.

24. The Respondent/Kotak Mahindra Bank Limited in its Reply has
submitted that at all relevant times from granting of financial facilities to
disbursement to execution of various loan documents till the loan account of
Company became irregular, it was always represented to the Bank that all
the persons as mentioned herein above along with Petitioners herein, are the
persons in charge of and responsible for conducting the day-to-day affairs,
management, activities and functioning of the Company.

25. The Bank sanctioned Financial Facilities from time to time amounting
to Rs. 157.36 Crores and the Bank also issued a Sanction Letter dated
11.02.2016 setting the terms and conditions on which the said Facilities
were granted, extended and accepted by signing and acknowledging on the
copy of the same. Loan Agreement was signed and executed by the
Company in respect of the said facilities from the year 2006 confirming the
terms and conditions mentioned therein.

26. It is further stated that all the Directors of Company i.e. Petitioner No.
1 to Petitioner No. 6 along with Mr. Ashish Kumar Guha, Ms. Nandni Adya
and Mr. Bhuthalingam Hariharan also executed various other Loan
documents in respect of the Financial Facilities granted in favour of the
Bank, with respect to the said Facilities. Pertinently, all the Members of the
Board of Company i.e. M/s Ballaipur Industries Limited were fully aware of
and in knowledge of all such facilities, documents, sanctions etc. and
therefore, Board Resolutions and such other documents were signed and

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executed. Thus, it is submitted that there is no merit in the Petitions which
are liable to be dismissed.

27. So far as the Petitioner in CRL. M.C No. 2693/2019 is concerned; it
is asserted that Mr. Bhuthalingam (being the Petitioner) is an independent
Director. However, he is also a Group Director, Finance and had signed a
Resolution passed in the year 2014. He was a person authorized to transact
with the Bank and to sign necessary documents along with other persons of
the Company. Thus, he was in active participation in the present Loan
transaction.

28. The present Petitions are liable to be dismissed.
Submissions heard and record perused along with written submissions.

29. The cheques in question dated 18.04.2017 bearing no. 062122 for Rs.
10,00,00,000/- & 28.04.2017 bearing no. 0621123 for Rs. 9,84,73,271/-
were claimed to have been issued by the Petitioner Company, M/s Ballarpur
Industries Ltd., in discharge of its debt owed to the Complainant Bank.

30. Section 141 of N.I. Act read with Explanation, makes it abundantly
clear that when an offence is committed by a Company or a Firm, every
member who is responsible and in charge of the affairs of the
Company/Firm, is guilty of the offence committed under Section 138 of NI
Act.

31. The Petitioners No. 1 – 6 in Crl. M.C. 4373/2018 have sought
discharge on the basis of their role and designation in the Company as being
that of Non-Executive Directors, Independent Directors, and Nominee
Directors; thus not having any role in the conduct of day-to-day affairs of
the Company.

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32. The Master Circular No. RBI/2012-13/43 dated 02.07.2012 issued by
Reserve Bank of India on “Willful Defaulters” with respect to reporting of
names of Directors and the position regarding independent and nominee
Directors. and the “Listing Agreement” prescribed by Securities and
Exchange Board of India as under:-

“A. Classification under the Companies Act Categories
of Directors
The Companies Act refers to the following two specific
categories of Directors:

1. Managing Directors; and

2. Whole-time Directors.

A Managing Director is a Director who has substantial
powers of management of the affairs of the company subject
to the superintendence, control and direction of the Board in
question. A Whole-time Director includes a Director who
is in the whole-time employment of the company, devotes
his whole-time of working hours to the company in question
and has a significant personal interest in the company as his
source of income. Every public company and private
company, which is a subsidiary of a public company, having
a share capital of more than Five Crore rupees (Rs.
5,00,00,000/-) must have a Managing or Whole-time
Director or a Manager.

Further classification of Directors based on the
circumstances surrounding their appointment,
the Companies Act recognizes the following further types of
Directors:

1. First Directors: Subject to any regulations in the Articles
of a company, the subscribers to the Memorandum of
Association, or the company‟s charter or constitution
“Memorandum”), shall be deemed to be the Directors of the
company, until such time when Directors are duly appointed
in the annual general meeting (“AGM”).

2. Casual vacancies: Where a Director appointed at the
AGM vacates office before his or her term of office expires
in the normal course, the resulting vacancy may, subject to

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the Articles, be filled by the Board. Such person so
appointed shall hold office up to the time which the Director
who vacated office would have held office if he or she had
not so vacated such office.

3. Additional Directors: If the Articles specifically so
provide or enable, the Board has the discretion, where it
feels it necessary and expedient, to appoint Additional
Directors who will hold office until the next AGM.

However, the number of Directors and Additional Directors
together shall not exceed the maximum strength fixed in the
Articles for the Board.

4. Alternate Director: If so authorized by the Articles or by
a resolution passed by the company in general meeting, the
Board may appoint an Alternate Director to act for a
Director (“Original Director”), who is absent for whatever
reason for a minimum period of three months from the State
in which the meetings of the Board are ordinarily held. Such
Alternate Director will hold office until such period that the
Original Director would have held his or her office.
However, any provision for automatic re-appointment of
retiring Directors applies to the Original Director and not to
the Alternate Director.

5. Shadow Director: A person, who is not appointed to the
Board, but on whose directions the Board is accustomed to
act, is liable as a Director of the company, unless he or she
is giving advice in his or her professional capacity. Thus,
such a shadow; Director may be treated as an; officer in
default under the Companies Act.

6. De facto Director: Where a person who is not actually
appointed as a Director, but acts as a Director and is held
out by the company as such, such person is considered as a
de facto Director. Unlike a shadow Director, a de facto
Director purports to act, and is seen to the outside world as
acting, as a Director of the company. Such a de facto
Director is liable as a Director under the Companies Act.

7. Rotational Directors: At least two-thirds of the Directors
of a public company or of a private company subsidiary of a
public company have to retire by rotation and the term

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rotational Director refers to such Directors who have to
retire (and may, subject to the Articles, be eligible for re-
appointment) at the end of his or her tenure.

8. Nominee Directors: They can be appointed by certain
shareholders, third parties through contracts, lending public
financial institutions or banks, or by the Central
Government in case of oppression or mismanagement. The
extent of a nominee Directors rights and the scope of
supervision by the shareholders, is contained in the contract
that enables such appointments, or (as appropriate) the
relevant statutes applicable to such public financial
institution or bank. However, nominee Directors must be
particularly careful not to act only in the interests of their
nominators but must act in the best interests of the company
and its shareholders as a whole. The fixing of liabilities on
nominee Directors in India does not turn on the
circumstances of their appointment or, indeed, who
nominated them as Directors. Chapter 4 and Chapter 5 that
follow set out certain duties and liabilities that apply to, or
can be affixed on, Directors in general. Whether nominee
Directors are required by law to discharge such duties or
bear such liabilities will depend on the application of the
legal provisions in question, the fiduciary duties involved
and whether such nominee Director is to be regarded as
being in control or in charge of the company and its
activities. This determination ultimately turns on the
specific facts and circumstances involved in each case.

B. Classification under the Listing Agreement
The Securities Contracts (Regulation) Act, 1956
, read with
the rules and regulations made thereunder, requires every
Company desirous of listing its shares on a recognized
Indian stock exchange, to execute a listing Agreement
(Agreement) with such Indian stock exchange. This
Agreement is in a standard format (prescribed by the
Securities Exchange Board of India (“SEBI”)), as amended
by SEBI from time to time. The Agreement provides for the
following further categories of Directors:

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Categories under the Listing Agreement:

1. Executive Director;

2. Non-executive Director; and

3. Independent Director.

Executive and non-executive Directors
An Executive Director can be either a Whole-time Director
of the company (i.e. one who devotes his whole time of
working hours to the company and has a significant personal
interest in the company as his source of income), or a
Managing Director (i.e. one who is employed by the
company as such and has substantial powers of management
over the affairs of the company subject to the
superintendence, direction and control of the Board).
In contrast, a non-executive Director is a Director who is
neither a Whole-time Director nor a Managing Director.
Clause 49 of the Agreement prescribes that the Board shall
have an optimum combination of executive and non-
executive Directors, with not less than fifty percent (50%)
of the Board comprising non-executive Directors. Where the
Chairman of the Board is a non-executive Director, at least
one-third of the Board should comprise independent
Directors and in case he is an executive Director, at least
half of the Board should comprise independent Directors.
Where the non-executive Chairman is a promoter of the
company or is related to any promoter or person occupying
management positions at the Board level or at one level
below the Board, at least one-half of the Board of the
company shall consist of independent Directors.

Independent Directors
The Agreement defines an “Independent Director” as a non-
executive Director of the company who”

a. apart from receiving Directors remuneration, does not
have material pecuniary relationships or transactions
with the company, its promoters, its Directors, its senior
management, or its holding company, its subsidiaries, and
associates which may affect independence of the Director;

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b. is not related to promoters or persons occupying
management positions at the board level or at one level
below the board;

c. has not been an executive of the company in the
immediately preceding three (3) financial years;
d. is not a partner or an executive or was not a partner or an
executive during the preceding three (3) years, of any of the
following:

i. the statutory audit firm or the internal audit firm that
is associated with the company, and
ii. the legal firms and consulting firms that have a
material association with the company;
e. is not a material supplier, service provider or customer or
a lessor or lessee of the company, which may affect the
independence of the Director; or
f. he is not a substantial shareholder of the company, i.e,
owning two percent (2%) or more of the block of voting
shares; and
g. he is not less than twenty-one (21) years of age.
Nominee directors appointed by an institution that has
invested in, or lent money to, the company are also treated
as independent Directors.”

33. The Division Bench of the Gujarat High Court in the case of Ionic
Metalliks v. Union of India
2014 SCC OnLine Guj 10066 upheld the
Circular Of RBI.
The Coordinate Bench of this Court in Rahul Vijayvargia
vs The State Of Delhi And Ors.
, in CRL.M.C. 2654/2023 decided on
19.09.2024 and Sai Girdhar Raj Kumar v. Arun Kapoor & Ors., in
CRL.M.C. 3864/2018 decided on 04.05.2020 had also taken note of this
Circular of the RBI and placed reliance on the same for determination of
culpability in Offences under Section 138 NI Act.

34. This Circular of RBI explains that the Companies Act recognizes
different kind of Directors/Authorised Persons who may be associated in the
affairs and Management of the Company. It provided for two specific

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categories of Directors: first, Managing Director and second, Whole-time
Directors.

35. Classification into further sub-classes is also provided and
has recognized the following types of Directors: (i) First Directors, (ii)
Casual vacancies, (iii) Additional Directors, (iv) Alternate Director, (v)
„Shadow’ Director, (vi) De facto Director, (vii) Rotational Directors, and

(viii) Nominee Directors.

36. Further, clarity is provided in “Listing Agreement” prescribed by
Securities and Exchange Board of India, where Directors have been
categorised in Categories under the Listing Agreement: (i) Executive
Director; (ii) Non-executive Director; and (iii) Independent Director.

37. It is in this backdrop that the contentions raised by the Petitioners
need to be appreciated.

38. The averments made in the Complaint regarding the role of the
Petitioners need to be considered, which is as under:

“….

3. That it is hereby stated that at all relevant times Accused
No. 1 has represented that Accused No.2 and 3 are the
authorized signatories and accused No. 4 to 12 are
directors and also the Authorized Signatories of M/s
Ballarpur Industries Ltd., i.e. Accused No. 1. It is further
stated that Accused No.2 & 3 are the Signatories of the At-
par Cheques.

4. That the Accused Nos.2 to 3 are the Authorized
Signatories and Representatives and 4 to 12 are Directors
& Authorized Signatories and Representatives were at all
the relevant times, and presently are the persons in charge
of and responsible for conducting the day-to-day affairs,
management, activities functioning of Accused No. 1. That
all the accused are jointly and / or severally responsible for
the acts of omission and commission committed by Accused

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No. l, as Directors and Authorized Signatories were actively
involved in the entire transaction right from the inception
i.e. from time of approaching complainant for sanctioning
and availing various facilities and as also during the time
that accused’s loan account was irregular when several
discussions and meetings were held between complainant
and all the accused.

….

13. ….At all relevant times all the accused had repeatedly
assured and confirmed the complainant that their Accounts
would be regularized at the earliest.

28. ….The cheques in question were issued by the Accused
No. 2 & 3, on behalf of Accused No. 1 and 4 to 12 and in
their personal capacity, to Complainant out of an account
with its Bank.”

Independent Directors:

39. The Petitioner no. 1/Mr. Amarjit Singh Dulat (Accused no. 10),
Petitioner 2/Mr. Sanjay Mohan Labroo (Accused No. 5) & Petitioner no.
3/Mr. Amaarendra Pratap Singh (Accused no. 11) have sought to argue that
they are Independent Directors, and consequently had no control over the
day-to-day affairs of the Company. The same is proved by way of FORM
DIR-12 by all three wherein they are categorised as “Independent Director”

within the class of “Non-executive Directors”.

40. First and foremost, what needs to be ascertained is who is an
Independent Director and under what circumstances can a Director be liable
for the acts of an Accused Company?

41. Here, reference can be made to Section 2(47) Companies Act, 2013
which states that an “Independent Director” means an independent Director
referred to in sub-section (6) of Section 149.

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42. Section 149(6) Companies Act, 2013 is reproduced as under for
reference: –

“(6) An independent director in relation to a company,
means a director other than a managing director or a
whole-time director or a nominee director,

(a) who, in the opinion of the Board, is a person of integrity
and possesses relevant expertise and experience;

(b)(i) who is or was not a promoter of the company or its
holding, subsidiary or associate company;

(ii) who is not related to promoters or directors in the
company, its holding, subsidiary or associate
company;

(c) who has or had no pecuniary relationship, other than
remuneration as such director or having transaction not
exceeding ten per cent of his total income or such amount as
may be prescribed, with the company, its holding, subsidiary
or associate company, or their promoters, or directors,
during the two immediately preceding financial years or
during the current financial year;

(d) none of whose relatives–

(i) is holding any security of or interest in the
company, its holding, subsidiary or associate company
during the two immediately preceding financial years
or during the current financial year:

Provided that the relative may hold security or interest
in the company of face value not exceeding fifty lakh
rupees or two per cent of the paid-up capital of the
company, its holding, subsidiary or associate company
or such higher sum as may be prescribed;

(ii) is indebted to the company, its holding, subsidiary
or associate company or their promoters, or directors,
in excess of such amount as may be prescribed during
the two immediately preceding financial years or
during the current financial year;

(iii) has given a guarantee or provided any security in
connection with the indebtedness of any third person to
the company, its holding, subsidiary or associate

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company or their promoters, or directors of such
holding company, for such amount as may be
prescribed during the two immediately preceding
financial years or during the current financial year; or

(iv) has any other pecuniary transaction or
relationship with the company, or its subsidiary, or its
holding or associate company amounting to two per
cent or more of its gross turnover or total income
singly or in combination with the transactions referred
to in sub-clause (i), (ii) or (iii);]

(e) who, neither himself nor any of his relatives–

(i) holds or has held the position of a key managerial
personnel or is or has been employee of the company
or its holding, subsidiary or associate company in any
of the three financial years immediately preceding the
financial year in which he is proposed to be appointed:

Provided that in case of a relative who is an employee,
the restriction under this clause shall not apply for his
employment during preceding three financial years.

(ii) is or has been an employee or proprietor or a
partner, in any of the three financial years immediately
preceding the financial year in which he is proposed to
be appointed, of–

(f) who possesses such other qualifications as may be
prescribed.”

43. Section 149(6) Companies Act, 2013 thus, defines that an
„Independent Director‟ is a Director who is not a Managing Director,
Whole-Time Director, or Nominee Director, and who meets specific criteria
related to integrity, expertise, who has / had no pecuniary relationship, other
than remuneration as such Director, and independence from the Company’s
promoters and Management. An independent director does not hold any
security or interest in the Company or its subsidiary or associate company.

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44. Furthermore, Section 149(12) of the Companies Act, 2013 provides
a protective framework for Independent Directors and Non-Executive
Directors (not being promoter or key managerial personnel), by limiting
their liability. It holds them accountable only for acts of omission or
commission by the Company that occurred with their knowledge gained
through Board processes and with their consent, connivance, or due to their
failure to act diligently.

45. Thus, it is clear that Non-Executive Directors, including Independent
Directors, are typically not involved in the day-to-day operations of the
Company, which further limits the scope of their potential liability.

46. Neither the Petitioner no. 1/Mr. Amarjit Singh Dulat (Accused no.

10), Petitioner 2/Mr. Sanjay Mohan Labroo (Accused No. 5) & Petitioner
no. 3/Mr. Amaarendra Pratap Singh (Accused no. 11), though being
Directors, had any role in the management or control of the affairs of the
Company. It has to be specifically averred in the Complaint as to how the
Petitioners, being an independent Directors, were in charge of day to day
affairs of the Company as well as the conduct of its business, but nothing of
this nature can be made out from the Complaint.

47. In view of Section 141 NI Act and Section 149 of Companies Act,
2013, Petitioners could have been held vicariously liable only if it was
shown that they were in charge of and were responsible for the conduct of
the business of the Company at the time of commission of Offence, and not
otherwise.

48. They are therefore, entitled to be discharged.
Non-Executive Directors:

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49. Petitioner No. 4/Mr. Rajeev Ranjan Vederah (Accused no. 6) &
Petitioner no. 5/Mr. Gautam Thapar (Accused no. 7) have asserted that they
are Non-Executive Directors. Petitioner No. 4 has proved his designation by
way of FORM DIR-12 wherein he is categorised as a “Professional
Director” within the class of “Non-executive Directors”. Petitioner no. 5/Mr.
Gautam Thapar has proved his designation by way of FORM DIR-32
wherein he is categorised as a “Promoter Director” within the class of
“Non-executive Directors” and “Chairman”.

50. In the judgment of Apex Court in Pooja Ravinder Devidasani vs.
State of Maharashtra
, (2014) 16 SCC 1 it was observed that “while taking
into consideration that a non-executive director plays a governance role
and are not involved in the daily operations or financial management of the
Company, held that to attract liability under section 141 of the NI Act, the
accused must have been actively in-charge of the company’s business at the
relevant time. Mere directorship does not create automatic liability under
the Act. The law has consistently held that only those who are responsible
for the day-to-day conduct of business can be held accountable.”

51. The Apex Court in the case of Chitalapati Srinivasa Raju vs.
Securities and Exchange Board of India
, AIR 2018 SC 2411, held that
“non-executive directors are, therefore, persons who are not involved in the
day-to-day affairs of the running of the company and are not in charge and
are not responsible for the conduct of the business of the company.”

52. These observations made in the case of Pooja Ravinder Devidasani
(supra) have been endorsed by the Apex Court in the recent case of Kamal
Kishor Shrigopal Taparia vs India Ener Gen Private Limited
2025 INSC 22.

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53. Both the Petitioner No. 4 & 5 are Non-Executive Directors and no
specific role has been imputed to them in the Complaint except the general
averments that they are Authorized Signatories of M/s Ballarpur Industries
Ltd. and were involved in the discussions during the Loan Facilities.

54. Therefore, it cannot be said that they were in-charge or responsible
for the day today working of the Accused Company and are entitled to be
discharged.

Nominee Director:

55. Similarly, Petitioner No.6/Sh. Mr. Bhaskaran Nayar Venugopal is
merely a nominee Director and no specific role has been ascribed to him or
can be ascertained from the relevant paras of the Complaint. The same is
proved by way of FORM DIR-12, wherein he is categorised as
“Professional Nominee Director” within the class of “Non-executive
Directors”.

56. The RBI Circular has provided a description of “Nominee Directors”

in the Classification provided under the Companies Act, which is as under:

“The Nominee Directors can be appointed by certain
shareholders, third parties through contracts, lending
public financial institutions or banks, or by the Central
Government in case of oppression or mismanagement. The
extent of a nominee Director’s rights and the scope of
supervision by the shareholders, is contained in the
contract that enables such appointments, or (as
appropriate) the relevant statutes applicable to such public
financial institution or bank. However, nominee Directors
must be particularly careful not to act only in the interests
of their nominators but must act in the best interests of the
company and its shareholders as a whole. The fixing of
liabilities on nominee Directors in India does not turn on
the circumstances of their appointment or, indeed, who

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nominated them as Directors. Chapter 4 and Chapter 5 that
follow set out certain duties and liabilities that apply to, or
can be affixed on, Directors in general.
Whether nominee Directors are required by law to
discharge such duties or bear such liabilities will depend
on the application of the legal provisions in question, the
fiduciary duties involved and whether such nominee
Director is to be regarded as being in control or in charge
of the company and its activities.

This determination ultimately turns on the specific facts and
circumstances involved in each case.”

57. From the above description, it becomes clear that the role of the
Nominee Director has to be determined from the specific facts and
circumstances.

58. Further support in this regard is offered by the Classification
prescribed in the Listing Agreement prescribed by the SEBI which provides
that the Nominee Directors “are also treated as independent Directors.”

59. Thus, the Petitioner No. 6, being a nominee of LIC, cannot be
summoned as he had no role in the day-to-day affairs of the Company, and
is entitled to be discharged.

CRL. M.C. 2693/2019:

60. Petitioner/Accused no. 8/Mr. Bhuthalingam Hariharan has sought
to argue that there is no specific role ascribed to him in the Complaint, and
neither was he a signatory of the impugned Cheques. There is nothing to
prove his class and category as a Director in the Company.

61. The Supreme Court in Aneeta Hada vs. M/s Godfather Travels &
Tours Pvt. Ltd., AIR 2012 SC 2795, after referring to judgments in Iridium
India Telecom Ltd. vs. Motorola Inc and Ors.
, 2004 (1) BOM CR 479 and
Standard Chartered Bank and others vs. Directorate of Enforcement and

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others
, AIR 2006 SC 1301, has observed that “the Company can have
criminal liability and further, if a group of persons that guide the business of
the companies have the criminal intent, that would be imputed to the body
corporate. In this backdrop, Section 141 of the Act has to be understood.
The said provision clearly stipulates that when a person which is a
Company commits an offence, then certain categories of persons in charge
as well as the Company would be deemed to be liable for the offences
under Section 138. Thus, the statutory intendment is absolutely plain.”

62. The same was reiterated by the Apex Court in Anil Gupta vs Star
India Pvt. Ltd.
, 2014 (10) SCC 373, Himanshu vs B. Shivamurthy & Anr.,
(2019) 3 SCC 797, and recently in Bijoy Kumar Moni vs Paresh Manna &
Anr., 2024 INSC 1024.

63. Law in regards to the liability of Directors stands settled in S.M.S.
Pharmaceuticals Ltd. vs. Neeta Bhalla
(2005) 8 SCC 89 wherein the
requirements of Section 141 were defined. Apex Court had reiterated and
clarified that essentially in a case under Section 141, there ought to be a
specific averment in the pleadings of the Complainant that at the time the
Offence was committed, the person accused was in charge of and
responsible for the conduct of the business of the Company. It was held that
a Director would not be liable simply because they are holding that position.
It needs to be shown that the Director being made liable should be in charge
of and responsible for the conduct of the business of the Company at the
time of committing the offence. Further, that the persons holding the office
of “Managing Director” or “Joint Managing Director”, by virtue of the
very nature of their role, renders them in charge of and responsible for the
conduct of the business of the Company, and liable under Section 141.

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64. Further, the Apex Court in Sunita Palita vs. M/s Panchami Stone
Quarry, in SLP (Crl.) No. 10396 of 2019 decided on 01.08.2022, has
reiterated the importance of specific averments with regard to the Directors‟
role in the pleadings, and has held that no such specific averment with
regard to the role is needed when the person has the term “Managing”
affixed to their position as Director, as it would be clear that they are in
charge of and responsible for the Company.

65. The role of Accused no. 8/Mr. Bhuthalingam Hariharan, the
Petitioner herein, as a Director of the Company thus, needs to be seen in the
context that there are no other eligible Persons who had control over the
affairs of the Company.

66. The Petitioner has sought to seek quashing of the Summoning Order
on the basis of no specific averments being made in the Complaint qua his
role.

67. In the recent case of HDFC Bank Ltd. vs. State of Maharashtra and
Anr.
, 2025 INSC 759, the Apex Court has held that criminal proceedings
under Section 138 N.I Act against a Company Director cannot be dismissed
solely because the Complaint does not precisely replicate the wording of
Section 141. The Court underscored that the essence of the allegations is
more important than their form. If the Complaint sufficiently indicates that
the Director was actively involved in the Company‟s day-to-day operations
and played a role in the transactions in question, this is enough to meet the
threshold for vicarious liability under Section 141(1) NI Act, even if the
statutory expression “in charge of and responsible for the conduct of the
business” is not quoted verbatim.

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68. Furthermore, it was observed that a harmonious reading of the
judgments in K.K. Ahuja vs. V.K. Vora and Another, (2009) 10 SCC 48,
National Small Industries Corporation Limited vs. Harmeet Singh Paintal
and Another
, (2010) 3 SCC 330 and S.P. Mani and Mohan Dairy vs. Dr.
Snehalatha Elangovan
, (2023) 10 SCC 685 brings out the position that there
is no obligation on the Complainant to plead in the Complaint as to matters
within the special knowledge of the Company or the Directors or Firm about
the specific role attributed to them in the Company/Firm.

69. The Petitioner/Mr. Bhuthalingam Hariharan, Accused no. 8 being the
Director of the Company, is therefore, not entitled to be discharged.

Insolvency proceedings against the Accused Company:

70. The next aspect, which has been argued, is that the Complaint
does not survive in view the Insolvency proceedings being admitted by
the NCLT.

71. To appreciate this contention reference has to be made to the case of
P. Mohanraj & Ors. vs. Shah Brothers Ispat Pvt. Ltd., (2021) 6 SCC 258
wherein while considering the impact of proceedings under IBC on a
Corporate Debtor (Company and its Directors), the Apex Court observed
that in view of the legal impediment contained under Section 14 IBC, it
would be impossible to continue the proceedings under Section 138 of N.I.
Act or be instituted against the Corporate Debtor. However, it was further
noted that such statutory bar would apply only to the Corporate Debtor
while the natural persons mentioned in Section 141 NI Act, continue to be
statutorily liable under Section 138 N.I. Act.

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72. Two aspects emerged from this judgment of P. Mohanraj & Ors.
(supra); firstly, that once the proceedings have been commenced under IBC,
no proceedings under Section 138 of N.I. Act, can be commenced or
continued against the Corporate debtor/Company. The second aspect is that
the proceedings under Section 138 N.I. Act may be continued against the
natural persons mentioned in Section 141 N.I. Act.

73. In the present case, BILT has undergone CIRP, as National Company
Law Tribunal, Mumbai vide Order dated 17.01.2020, has admitted the
Application of a Financial Creditor of the Accused Company/BILT for
appointment of an Interim Resolution Professional (IRP) to administer the
Accused Company. Complainant/Bank had availed the remedy under the
IBC and filed its claim before the IRP, which now forms part of the
Resolution Plan of the Accused Company, which came to be approved by
NCLT on 31.03.2023. The Complainant/Bank would, therefore, be paid in
terms of the Approved Resolution Plan.

74. However, the Cheques and Complaint pertain to year 2017, i.e. prior
to the commencement of CIRP proceedings. Thus, in view of P. Mohanraj
& Ors.
(supra) the Complaint under Section 138 N.I. Act is maintainable
and the Petitioner/Director, in any case, is a natural person in control of the
Company at the time the offence was committed, and thus cannot be
discharged.

Conclusion:

75. In view of the aforesaid discussion, the Summoning Order dated
09.08.2017 is set aside qua Petitioner no. 1/Mr. Amarjit Singh Dulat
(Accused no. 10), Petitioner no. 2/Mr. Sanjay Mohan Labroo (Accused No.

5) & Petitioner no. 3/Mr. Amaarendra Pratap Singh (Accused no. 11) who

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are independent Directors, in the Company. Also, the Summoning Order
dated 09.08.2017 is set aside against Petitioner No. 4/Mr. Rajeev Ranjan
Vederah (Accused no. 6) & Petitioner no. 5/Mr. Gautam Thapar (Accused
no. 7) who are the non-executive Directors, and Petitioner no. 6/Mr.
Bhaskaran Nayar Venugopal (Accused no. 12), the LIC‟s nominee director.

76. In view of the above discussion, the Summoning Order dated
09.08.2017 for Petitioner/Accused No. 8 is not liable to be quashed.
Relief:

77. The Petition CRL.M.C.4373/2018 is allowed and the Summoning
Order dated 09.08.2017 stands quashed qua the Petitioners No. 1 – 6.

78. The Petition CRL.M.C. 2693/2019 of Petitioner/Accused no. 8/Mr.
Bhuthalingam Hariharan, is dismissed.

79. The Petitions are disposed off accordingly, along with pending
Application(s), if any.

(NEENA BANSAL KRISHNA)
JUDGE
JULY 31, 2025
N

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