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2004 DIGILAW 240 (HP)

K. D. SHARMA v. KISHORI LAI DOGRA

2004-09-23

M.R.VERMA

body2004
JUDGMENT M.R. Verma, J.: This petition under Section 482 of the Code of Criminal Procedure has been preferred by the petitioner/accused I (hereinafter referred to as the accused) for quashing the complaint (filed against him under Sections 138/141 of the Negotiable Instruments Act, 1981 by the respondent/complainant (hereafter referred to as the complainant) and the summoning orders therein. 2. Brief facts leading to the filing of the present petition are that the complainant has filed a complaint against the accused under Section 138 of the Negotiable Instruments Act on the grounds that he had deposited amount in the company of the accused and on maturity of the fixed deposited receipt accused issued five cheques dated 25.12.2000 in favour of the complainant which were drawn on Punjab National Bank, Bilaspur. The cheques could not be encashed and were dishonoured by the bank because of insufficient funds in the account of the accused. According to the complainant, he was cheated and harassed by the accused. He served the accused with a legal notice through his counsel on 26.4.2001 which was neither replied to nor acted upon by the accused. Hence, the complaint. 3. After recording preliminary evidence the learned trial Magistrate found that there were grounds to summon the accused, therefore, summons were issued to the accused. It took sufficiently long time to secure the presence of the accused as he was not available at the given address and finally his presence was procured from the jail where he was detained after more than 2-1/2 years of filing of the complaint and thereafter notice of accusation was given to the accused on 2.3.2004. It is against this background that the accused had preferred the present petition. 4. The accused is in jail and in the petition he had shown his inability to engage a counsel, therefore, a legal aid counsel was provided to him. 5. I have heard the learned Counsel for the parties and have also gone through the material placed on the record. 6. 4. The accused is in jail and in the petition he had shown his inability to engage a counsel, therefore, a legal aid counsel was provided to him. 5. I have heard the learned Counsel for the parties and have also gone through the material placed on the record. 6. The only contention for the accused, as advanced at the hearing and as contained in the petition, is that the money was deposited with the company M/s. Veerbhumi Plantations (I) Ltd. and that the cheques were issued by the accused on behalf of the said company and not in his personal capacity, therefore, in the absence of the company having been arrayed as an accused, the complaint is not maintainable and is liable to be quashed alongwith the proceedings taken therein. To substantiate his contention, the learned Counsel has relied on A.C. Gupta v. Renu Gautam, 2003(2) JCC (Nl) 197 and S. Vishwanathan v. United Phosphorous Ltd., 2000 DCR 223. 7. On the other hand, the learned Counsel for the complainant contended that the accused being the director of the company having issued the cheques under his signatures is liable to be prosecuted for the commission of the offence and the complaint cannot be dismissed on the ground that the said company has not been joined as an accused in the complaint. 8. In A.C. Gupta and S. Vishwanaths case (supra) no doubt the view taken by this High Court and Madras High Court is that in a case where a cheque is issued by a partner/director of the firm/company and is dishonoured, the complaint cannot proceed against the partner/director of the company alone in the absence of the company having been impleaded as an accused. However, the law as laid down in the aforesaid cases is no longer good law in view of the decision of the Apex Court in Anil Handa v. Indian Acrylic Ltd., 2000 SC 1 and R Rajagopal v. S.S. Venkat, 2001(10) SCC 911. 9. In Anil Handas case (supra), the Honble Supreme Court while dealing with the question, as in hand, has held as under :- "13. If the offence was committed by a company it can be punished only if the company is prosecuted. 9. In Anil Handas case (supra), the Honble Supreme Court while dealing with the question, as in hand, has held as under :- "13. If the offence was committed by a company it can be punished only if the company is prosecuted. But instead of prosecuting the company if a payee opts to prosecute only the persons falling within the second or third category the payee can succeed in the case only if he succeeds in showing that the offence was actually committed by the company. In such a prosecution the accused can show that the company has not committed the offence, though such company is not made an accused, and hence the prosecuted accused is not liable to be punished. The provisions do not contain a condition that prosecution of the company is sine qua non for prosecution of the other persons who fall within the second and the third categories mentioned above. No doubt a finding that the offence was committed by the company is sine qua non for convicting those other persons. But if a company is not prosecuted due to any legal snag or otherwise, the other prosecuted persons cannot, on that score alone, escape from the penal liability created through the legal fiction envisaged in Section 141 of the Act." It is further held as under:- "21. We, therefore, hold that even if the prosecution proceedings against the Company were not taken or could not be continued, it is no bar for proceeding against the other persons falling within the purview of sub-sections (1) and (2) of Section 141 of the Act." 10. In Rajagopals case (supra), the Honble Supreme Court reaffirmed the above view and held as under:- "2. The only ground on which the complaint filed by the petitioner against the respondent for the offence under Section 138 of the Negotiable Instruments Act has been quashed by the High Court is that the Company (the partnership firm in this case) on whose behalf the cheque was issued was not made an accused in the complaint. The respondent who is the partner has been made an accused. 3. The aforesaid stand of the High Court cannot now be sustained in view of the pronouncement of law on the subject in Anil Handa v. Indian Acrylic Ltd." 11. The respondent who is the partner has been made an accused. 3. The aforesaid stand of the High Court cannot now be sustained in view of the pronouncement of law on the subject in Anil Handa v. Indian Acrylic Ltd." 11. In view of the above settled position in law, a complaint cannot, fail on the sole ground as relied on in the case in hand that the j Company has not been impleaded as an accused in the complaint, therefore, there is no merit and substance in the present petition. 12. As a result, this petition is dismissed. 13. A copy of this order be sent to the petitioner through Superintendent of concerned Jail.