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2002 DIGILAW 46 (MP)

Chandrakant Ambani v. Inder Raj Khanna.

2002-01-10

N.S.AZAD

body2002
Judgment ( 1. ) ARGUMENTS heard. It is not in dispute that Inder Raj Khanna, respondent No. 1 filed a complaint against this petitioner Chandrakant Ambani, Hirachand Salocha and Jitendra Kumar alias Jitu Bhai, who died during the course of this petition, in the Court of Judicial Magistrate, First Class, Sagar, alleging commission of an offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as an act), which is registered as Criminal Complaint No. 73/2000, on these facts and M/s. S. K. G. Solvex Company Ltd. , Choubey Colony, Near Central Bank of India, Raipur, which shall hereinafter be referred as solvex Ltd. of which Jitendra Kumar alias Jitu Bhai and Hirachand Salecha are the Directors, purchased Soyabeen seeds on credit worth Rs. 5,89,093/- in total, from respondent No. 1 the complainant, through M/s. Balaji Trading Corporation, Sagar. ( 2. ) PETITIONER Chandrakant Ambani was the Accountant of the Solvex Ltd. , at the relevant time. On 13th June, 1996, Solvex Ltd. made a payment of Rs. 2,50,000/- against the aforesaid outstanding amount of Rs. 5,89,093/-through a cheque and on 31st March, 1997, Hirachand Salecha handed over an account payee cheque, in favour of Inder Raj Khanna, respondent No. 1, for balance amount of Rs. 3,39,093/-, which stood dishonoured. It is also stated in the complaint that respondent No. 1 Inder Raj Khanna sent registered legal notices to Jitendra Kumar alias Jitu Bhai and Hirachand Salecha, the Directors of Solvex Ltd. , on 17th/19th May, 1997, making a request for payment of balance amount of Rs. 3,39,093/-, in addition to interest. It is further stated in the complaint that the notice issued to Jitendra Kumar alias Jitu Bhai was received unserved on 8th July, 1997, whereas, the notice issued to Hirachand Salecha respondent No. 2 was not received back served or unserved, till filing of the complaint. ( 3. 3,39,093/-, in addition to interest. It is further stated in the complaint that the notice issued to Jitendra Kumar alias Jitu Bhai was received unserved on 8th July, 1997, whereas, the notice issued to Hirachand Salecha respondent No. 2 was not received back served or unserved, till filing of the complaint. ( 3. ) THE petitioner seeks quashment of Criminal Complaint No. 73/2000 pending in the Court of J. M. F. C. , Sagar, on the grounds that Solvex Ltd. is not arrayed as accused in the complaint, the petitioner being Accountant only in Solvex Ltd. , cannot be treated to have been incharge of or responsible to the Company for the conduct and affairs of its business and hence, is not liable to be prosecuted under Section 141 of the Act, and that the complaint does not contain an assertion of service of notice on this petitioner before filing of the complaint as required under Section 138 of the Act. ( 4. ) SO far as the first ground taken on behalf of the petitioner, seeking quashment of the complaint is concerned, it is found dictated by Their Lordships of the Supreme Court in Anil Ham v. The Indian Acrylic Ltd. , X (1999) SLT 1=iv (1999) CCR 85 (SC)= (2000) 1 SCC page 1, that, even where drawer of cheque is a company and such company is a principal offender under Section 138 of the Act, the other categories of persons mentioned in Section 141 (1) (2) of the Act, cannot escape their liability simply on the ground that company is not prosecuted. Thus, the first ground taken on behalf of the petitioner falls to the ground. ( 5. ) SO far as the second ground is concerned, it is found explained by Honble the Supreme Court in K. P. G. Nair v. Jindat Menthol India Ltd. , I (2001) BC 243 (SC)=vii (2000) SLT 189=2001 (1) B. C. 243 (SC), that, a person other than the company can be prosecuted against, for an offence punishable under Section 138 of the Act, only if that person was incharge of and was responsible to the company for the conduct of its business. It is found stated in paragraph 4 of the complaint, the certified copy of which is on record that by letter dated 31st August, 1996, this petitioner certified to respondent No. 1, the fact of outstanding balance of Rs. 3,39,093/- against Solvex Ltd. It is further found stated in the same complaint at paragraph 4 that all the three accused persons inclusive of this petitioner assured the respondent that the aforesaid amount would be paid into to till November, 1996. Then in paragraph 2 of the complaint also it is found stated that this petitioner Chandrakant Ambani is also responsible to the business of the Company/solvex Ltd. , in addition to its Directors Jitendra Kumar and Hirachand Salecha. Thus, it is noted that this petitioner is stated to be responsible to the Company for the conduct of its business, in the complaint filed by respondent No. 1, therefore, the second ground taken on behalf of the petitioner, also does not help him in seeking the relief of quashment of the criminal complaint. ( 6. ) IN support of the last ground of non-assertion of the fact of service of notice on this petitioner, before filing the complaint by respondent No. 1, which is registered as Criminal Complaint No. 73/2001 in the Court of J. M. F. C. Sagar, for an offence punishable under Section 138 of the Act, my attention has been drawn to the case of Shakti Travels and Tours v. State of Bihar and Anr. , IV (2000) CCR 121 (SC)=vii (2000) SLT319=2001 AIR SCW 2307. It is found explained in the aforesaid case by the Supreme Court that in the absence of assertion of service of notice in the complaint filed for an offence punishable under Section 138 of the Act, the complaint is liable to be quashed. ( 7. ) NOW, on a reading of certified copy of the complaint, which is filed on behalf of the petitioner, it is noted that the fact of service of notice on this petitioner, who is arrayed ats. No. 3 in the complaint as an accused, is not asserted by or on behalf of respondent No. 1, before filing of the aforesaid complaint, registered as Criminal Case No. 73/2000, in the Court of J. M. F. C. , Sagar. No. 3 in the complaint as an accused, is not asserted by or on behalf of respondent No. 1, before filing of the aforesaid complaint, registered as Criminal Case No. 73/2000, in the Court of J. M. F. C. , Sagar. Even the fact of dispatch of any notice to this petitioner before filing of the complaint is not found stated in the criminal complaint, what of service. Then it is also found explained in Shakti Travels and Tours v. State of Bihar and Anr. (supra) that "undoubtedly the accused has a right to pay the money within 15 days from the date of the service of notice and only when it fails to pay, it is open for the complainant to file a case under Section 138 of the Negotiable Instruments Act. " Thus, on the ground of non-assertion of the fact of service of notice on this petitioner, before filing of the complaint by respondent No. 1, the Criminal Complaint No. 73/2000 is found liable to be quashed. ( 8. ) IN the result, this petition succeeds and the Criminal Complaint No, 73/2000 pending in the Court of J. M. F. C. Sagar against this petitioner, is hereby quashed accordingly.