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2006 DIGILAW 3602 (PNJ)

Luxmi Devi v. Puran Chand

2006-09-20

T.P.S.MANN

body2006
Judgment T.P.S.Mann, J. 1. The petitioners are seeking quashing of the complaint Annexure P-5 and the order Annexure P-6, whereby they have been summoned for an offence under Section 138 of the Negotiable Instruments Act, hereinafter referred to as "the Act". 2. Complainant Puran Chand alleged in the complaint that he had dealings with M/s. Jain Trading Company for the purchase of wheat from the area of Fatehabad district in the year 2004-05. Bhagwan Dass, Ramesh Kumar, Sham Lal, Rikash Kumar and Smt. Luxmi Devi were incharge and responsible for the conduct of business of M/s. Jain Trading Company. At the time of settlement of accounts in March, 2005, an amount of Rs. 10 lacs remained outstanding as legally enforceable liability. Accused Bhagwan Dass being the partner and authorised signatory on behalf of the firm and other partners issued cheque dated 31.3.2005 for Rs. 10 lacs to complainant Puran Chand. The complainant thereafter presented the cheque for collection, which was dishonoured on the ground that there were insufficient funds in the account. A legal notice was thereafter served by the complainant upon the accused firm and its partners, calling them to make the payment of cheque amount to the complainant within a period of 15 days from its receipt. As the accused did not pay the amount of the cheque within the stipulated period, the present complaint was filed on 10.12.2005. 3. After recording the preliminary evidence, Chief Judicial Magistrate, Fatehabad found sufficient material on record to proceed against all the accused under Section 138 of the Act. 4. Learned counsel for the petitioners has contended that as per the provisions of Section 141 of the Act, all the partners of the firm could not be summoned without there being an averment in the complaint that they were incharge and responsible to the firm in the conduct of the business of the firm. Further that the summoning order was a serious consequence and the same could not be passed in a routine manner without looking into the contents of the complaint as well as the legal notice and the fact that all the accused were being summoned. Lastly, it was contended that the filing of the complaint as well as passing of the summoning order was a clear abuse of process of law. 5. Lastly, it was contended that the filing of the complaint as well as passing of the summoning order was a clear abuse of process of law. 5. Under Section 141 of the Act, every person, who at the time the offence was committed, was incharge of and was responsible to the firm for the conduct of the business of the firm, could be hauled up and liable to be proceeded against and punished. However, if any person proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence, he could avoid punishment. The said provision is reproduced hereinbelow :- "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 liable to be proceeded against and punished accordingly : Provided that nothing contained in this sub-section 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." 6. In the present case, there was a specific averment in the complaint that M/s. Jain Trading Company was a partnership firm and accused Nos. 2 to 6, namely, Bhagwan Dass, Ramesh Kumar, Sham Lal, Rikash Kumar and Smt. Luxmi Devi were partners of the firm and these five persons were incharge and responsible for the conduct of business of M/s. Jain Trading Company. Para 1 of the complaint reads as under :- "1. That the accused No. 1 M/s. Jain Trading Company is partnership firm and accused No. 2 to 6 Bhagwan Dass etc. mentioned above are partners of accused No. 1 M/s. Jain Trading Company and accused No. 2 to 6 are incharge and responsible for the conduct of business of M/s. Jain Trading Company and this company use to sale and purchase of seasons crops on commission basis etc." 7. The aforementioned facts stated in the complaint were further supported by complainant Puran Chand by filing an affidavit wherein he stated that the cheque of Rs. The aforementioned facts stated in the complaint were further supported by complainant Puran Chand by filing an affidavit wherein he stated that the cheque of Rs. 10 lacs was issued by accused No. 2 (Bhagwan Dass) on behalf of accused No. 1 i.e. M/s. Jain Trading Company and that accused Nos. 2 to 6, namely, Bhagwan Dass, Ramesh Kumar, Sham Lal, Rikash Kumar and Smt. Luxmi Devi were incharge and responsible for the conduct of business of accused No. 1. 8. In view of the above, it cannot be said that any of the petitioners was prima facie not incharge or responsible to the firm for the conduct of the business of the firm. 9. In S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla and another, 2005(4) RCR(Crl.) 141 (SC) : 2005(3) Apex(Crl.) 229 (SC) : 2005(8) Supreme Court Cases 89, the Honble Supreme Court, after referring to a catena of authorities, held that it was necessary to specifically aver in the complaint under Section 14 of the Act that the accused was incharge of and responsible for the conduct of business of the company. Para 19(a) of the said judgment is 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 the complaint under Section 141 that at the time of 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 requirements of Section 141 cannot be said to be satisfied." 10 In M/s. Pepsi Food Limited and another v. Special Judicial Magistrate and others, 1997(4) RCR(Crl.) 761 (SC) : AIR 1998 Supreme Court 128, the Honble Supreme Court laid down guidelines in respect of passing of an order while summoning an accused in a criminal case. It was held as under :- "Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. It was held as under :- "Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The mode of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused." Chief Judicial Magistrate, Fatehabad, while passing the order whereby the petitioners were summoned, referred to the complaint filed by complainant Puran Chand as well as to his affidavit wherein details were given regarding the issuance of cheque by the accused and the said cheque being dishonoured on account of insufficient funds. The complainant had also placed on record a number of documents like original cheque Ex. P1, memo issued by the bank Ex. P2 and Ex. P3, postal receipt Exs. P5 to P10, notice Ex. P4 and registered envelope Ex. P11 to Ex. P15, receipts Ex. P11/A to Ex. P15/A and receipt Ex. P16. 11 After noticing the preliminary evidence, the Magistrate found material to proceed further against all the accused as accused Nos. 2 to 6 mentioned in the complaint were incharge and responsible persons of the firm M/s. Jain Trading Company i.e. accused No. 1. Perusal of the summoning order, thus, indicates that the nature of allegations made in the complaint and the evidence in support thereof were sufficient for the complainant to succeed in bringing charge home to the accused. 12. There is no sufficient material available on the file of the present case from which it could be said that the complaint and the summoning order were an abuse of the process of the law. 13. In view of the above, the present petition is without any merit and is dismissed in limine. 14. The observations made by this Court while disposing of the present petition be not construed as final expression on the merits of the case. The trial Court shall not be influenced by any observation made by this Court.