Anuj Jindal and another …… v. State of Uttarakhand and another

Learned counsel for the applicants submits that the impugned proceedings are liable to be quashed as single notice/complaint under Section 138 of N.I. Act, will not suffice for dishonor of three cheques of different dates.

4. He further submits that due compliance of Section 141 N.I. Act has also not taken place. As the complaint under Section 138 of N.I. Act, is lodged without asserting the liability of the proprietor in regard to in charge and day to day working of the business of the firm. In order to substantiate his argument he has placed reliance on judgment passed by Apex Court in Himanshu Vs. B. Shivamurty & others reported in (2019) 3 SCC 797 and two judgment passed by this Court referred as under:- i. Himanshu Vs. B. Shivamurthy and another reported in (2019) 3 SCC 797 (Supreme Court). ii. Vandana Arora and ors. Vs. M/s Chhote Lal Ashok Kumar in Crl. Misc. Application No.738 of 2024 (High Court of Uttarakhand). iii. Manish Gaur Vs. State of Uttarakhand and another in Crl. Misc. Application No.764 of 2017 (High Court of Uttarakhand).

5. He submitted that in all these judgments the Hon’ble Court has quashed the proceedings on the ground that summons were not issued to the company and only against the directors. He further stated that the ratio of all these judgments was that without taking cognizance against the firm, or company or director as the case may 2 be, the cognizance order against the accused/partner would be illegal.

6. Per contra, learned counsel for respondent no.2 submitted that compliance under Section 141 of N.I. Act is only mandatory in cases of “Company” and a proprietary concern (different from partnership firm) stands absolutely on different footing. He further stated that applicants were although carrying the business in name of the firm of applicant no.1, but he being proprietor thereof would be solely responsible for conduct of its day to day affair. He placed reliance on judgment of Hon’ble Supreme Court in the case of Raghu Lakshminarayan Vs. M/s Fine Tubes reported in (2007) 5 SCC 103 in which Apex Court differentiated between companies and proprietary concern and opined that compliance under Section 141 of N.I. Act is only mandatory for companies and partnership firms. Para no.9 of the judgment is quoted as under:- “9. The description of the accused in the complaint petition is absolutely vague. A juristic person can be a company within the meaning of the provisions of the Companies Act, 1956 or a partnership within the meaning of the provisions of the Partnership Act, 1932 or an association of persons which ordinarily would mean a body of persons which is not incorporated under any statute. A proprietary concern, however, stands absolutely on a different footing. A person may carry on business in the name of a business concern, but he being proprietor thereof, would be solely responsible for conduct of its affairs. A proprietary concern is not a company. Company in terms of the Explanation appended to Section 141 of the Negotiable Instruments Act, means any body corporate and includes a firm or other association of individuals. Director has been defined to mean in relation to a firm, a partner in the firm. Thus, whereas in relation to a company, incorporated and registered under the Companies Act, 1956 or any other statute, a person as a Director must come within the purview of the said description, so far as a firm is concerned, the same would carry the same meaning as contained in the Partnership Act.” 3

7. So far as argument of learned counsel for the applicants regarding filing of single notice and complaint with regard to dishonor of three cheques is concerned the learned Advocate appearing for respondent no.2 submitted that there is no illegality in filing the single complaint on single notice of dishonor of three cheques. It will prevent the multiplicity of the case. He further argued that all three cheques were being issued by the same party i.e., the applicant and were payable respondent no.2- complainant only and all three cheques were returned by Bank on 17.01.2019 with the note ‘stop payment by drawer’ and a single legal notice was sent on 13.02.2019, which was served upon the applicant on 20.02.2019, therefore, it was well within legal frame to file a single complaint. The argument made by learned counsel for the applicant is therefore misconceived and deserves to be rejected.

8. I have gone through the complaint, the C482 application supported by an affidavit and the counter affidavit filed by respondent no.2.

9. In order to appreciate the argument regarding the applicability of Section 141 of N.I. Act, 1881, the said section is quoted hereunder:-

141. Offences by companies. — “(1)If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be to be proceeded against and punished liable accordingly: Provided that nothing contained in this sub- section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence: 4 further Provided that where a person nominated as a Director of a company by virtue of his holding any office or employment in the Central financial Government or State Government or a corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter. (2)Notwithstanding anything contained in sub- section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.—For the purposes of this section,— (a)“company” means any body corporate and includes a firm or other association of individuals; and (b)“director”, in relation to a firm, means a partner in the firm.”

10. Having considered the provision of Section 141 of N.I. Act, 1881, there is no manner of doubt in the mind of this Court that Section 141 of N.I. Act, 1881, will not be attracted in case of propriety concern, which is different to a company and partnership firm which is clear from the explanation appended to Section 141 of N.I. Act, 1881. This Court is convinced that trial court committed no illegality in summoning the accused-applicants vide summoning order as the essential ingredients of Section 138 of N.I. Act, 1881 are made out.

11. The case laws cited by learned counsel for the applicants is of no help to him while case cited by learned counsel for respondent no.2 is applicable to the present set of facts.

12. In view of the above discussion, this Court is of the view that the C482 application deserves to be dismissed. 5

13. Accordingly the present C482 application is dismissed.

15. Interim order dated 21.09.2022 stands vacated. Pending application, if any, stands disposed of accordingly. SK (Pankaj Purohit, J.) 14.05.2025 6