Punjab And Haryana High Court · 2010

CORAM:- HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr. R.S.Mamli, Advocate for the petitioner. Ms. Poonam Sharma, Advocate for Mr. Shiv Kumar, Advocate for the respondent. *** RAM CHAND GUPTA, J.(Oral) Crl.Misc.No.586 of 2009 2 The present petition has been filed under Section 482 of Code of Criminal Procedure for quashing of criminal complaint No.142, dated

24.05.2007 filed by respondent-complainant under Section 138 of Negotiable Instruments Act (hereinafter called as the ‘Act’), pending in the court of Mrs.Shashi Bala Chauhan, JMIC, Faridabad, titled as M/s S.D.Traders v. M/s Varun Udyog and others, Annexure P4, qua the present petitioner, who has been added as accused No.3 alongwith accused M/s Varun Udyog and accused A.K.Marvah, partner and the summoning order dated 24.05.2007, Annexure P8 passed by learned Judicial Magistrate First Class, Faridabad summoning the present petitioner as accused. I have heard learned counsel for the parties and have gone through the whole record. It has been vehemently contended that no offence under Section 138 of the Act is made out against the present petitioner and that even from the averments in the complaint, the cheque was issued by accused – company and was signed by Vikram Marwah, partner of the company and that the petitioner was not signatory of the cheque. It is further contended that account is maintained by the company and that present petitioner has no concern with the company. It is further contended that there is no averment about the role of the petitioner in the company or the role of the petitioner in the issuance of the cheque, which is alleged to have been bounced, leading to the filing of the complaint under Section 138 the Act. Hence, it is contended that complaint Annexure P4, and summoning order, Annexure P8 qua the present petitioner cannot be sustained. It has also been contended that on similar facts between the same parties regarding some other cheque, complaint was filed against the present petitioner alongwith other accused Crl.Misc.No.586 of 2009 3 and that vide order dated 10.11.2009 passed by a coordinate Bench of this Court in Crl.Misc.No.M-63 of 2009, complaint qua the present petitioner was ordered to be quashed. Facts of the present case are quite similar to the facts in Crl. Misc. No.M-63 of 2009. In that case a coordinate Bench of this Court has relied upon the cases of N.K.Wahi v. Shekhar Singh and others, (2007) 9 Supreme Court Cases, 481 and D.C.M. Financial Services Limited v. J.N.Sareen and another (2008) 8 Supreme Court Cases, 1 and quashed the complaint and summoning order. There is nothing as to why I should take a different view than the one taken by coordinate Bench of this Court on the said petition on the similar facts. To bring an offence under Section 138 of the Act as also under the provisions of Section 141 of the Act, the requirements of a person to be an accused is that he should be connected with the day-to-day working of the company and only person who, at relevant time, are incharge of or responsible to the company for the conduct of the business of the company as well as the company, is deemed to be liable for the offence. There is no averment in the present case that the present petitioner was responsible for the conduct of the business of the company at the relevant time. Hon’ble Supreme Court in N.K.Wahi’s case (supra) held as under:- “19. In view of the above discussion, our answers to the questions posed in the reference are as under:- (a) It is necessary to specifically aver in a complaint under Section 141 that at the time the offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 and has to be made in a complaint. Without this averment being made in a complaint, the Crl.Misc.No.586 of 2009 4 requirements of Section 141 cannot be said to be satisfied. (b) The answer to the question posed in sub-para (b) has to be in the negative. Merely being a director of a company is not sufficient to make the person liable under Section 141 of the Act. A director in a company cannot be deemed to be in charge of and responsible to the company for the conduct of its business. The requirement of Section 141 is that the person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a director in such cases. (c) The answer to Question (c) has to be in the affirmative. The question notes that the managing director or joint managing director would be admittedly in charge of the company and responsible to the company for the conduct of its business. When that is so, holders of such positions in a company become liable under Section 141 of the Act. By virtue of the office they hold as managing director or joint managing director, these persons are in charge of and responsible for the conduct of business of the company. Therefore, they get covered under Section 141. So far as the signatory of a cheque which is dishonoured is concerned, he is clearly responsible for the incriminating act and will be covered under sub-section (2) of Section 141". Hence, in view these facts, the present petition is accepted and the complaint No.142, dated 24.05.2007 filed by respondent-complainant under Section 138 of Negotiable Instruments Act pending in the court of Mrs.Shashi Bala Chauhan, JMIC, Faridabad, titled as M/s S.D.Traders v. M/s Varun Udyog and others, and summoning order dated 24.05.2007, Annexure P8 are, hereby, quashed qua the present petitioner. Crl.Misc.No.586 of 2009 5 March 18, 2010. 'om' ( RAM CHAND GUPTA ) JUDGE