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2010 DIGILAW 299 (RAJ)

Naveen v. State of Rajasthan

2010-02-05

GOVIND MATHUR

body2010
JUDGMENT 1. - This misc. petition as per provisions of Section 482 Criminal Procedure Code pertains to a criminal complaint preferred under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the Act of 1881") regarding dishonour of cheque of Rs. 1,85,000/- issued and signed by one Shri Ramesh Kumar in the capacity of Proprietor, Madhur Milan Enterprises. The Chief Judicial Magistrate, Barmer under an order dated 5.6.2006 took cognizance of the complaint for offence punishable under Section 138 of the Act of 1881 and a revision petition challenging the order aforesaid came to be rejected by learned Additional Sessions Judge (Fast Track), Balotra vide order dated 27.6.2008. 2. The contention of counsel for the petitioner is that the courts below materially erred while not appreciating the fact that no liability upon the present petitioner could have been fastened as he is nothing to do either with Madhur Milan Enterprises or with Ramesh Kumar who tendered the cheque concerned. It is emphasised that there is nothing on record on basis of which the petitioner could have been even remotely connected with the proceedings under Section 138 of the Act of 1881. 3. Despite service, nobody has put in appearance to contest this petition on behalf of complainant Naresh Kumar son of Shankar Lal. This Court by order dated 7.1.2009 while admitting this petition for hearing called for the record, thus, the same is available for examination. 4. The Chief Judicial Magistrate took cognizance against the present petitioner on the count that in the complaint it is stated that "accused are partners of firm Madhur Milan Enterprises". Learned Additional Sessions Judge while rejecting the revision petition preferred by the petitioner held that the issue as to who are partners of the firm Madhur Milan Enterprises could be examined only after leading evidence and, therefore, at this stage nothing wrong was done by the trial court while taking cognizance under the order dated 5.6.2006 against the petitioner too. 5. On examination of entire record, I found that the cheque was signed by Shri Ramesh Kumar in the capacity as Proprietor of the firm Madhur Milan Enterprises. In the first notice, the complainant nowhere mentioned that the petitioner is a partner of the firm Madhur Milan Enterprises. 5. On examination of entire record, I found that the cheque was signed by Shri Ramesh Kumar in the capacity as Proprietor of the firm Madhur Milan Enterprises. In the first notice, the complainant nowhere mentioned that the petitioner is a partner of the firm Madhur Milan Enterprises. In the cause title of the complaint also accused No.1 Ramesh Kumar is shown as Proprietor of the firm Madhur Milan Enterprises, but nothing is said about the present petitioner. It is only in body of the complaint it is stated that "accused are partners of the firm Madhur Milan Enterprises". 6. Section 141 of the Act of 1881 provides certain offences by companies and such companies includes a firm or other association of individuals.As per Section 141 of the Act of 1881, if the person committing an offence under section 138 is a company, every person who, at the time 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. Sub-section (2) of Section 141 provides that where any offence under the Act of 1881 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. 7. In view of the provisions aforesaid, it is apparent that if a cheque i.e. dishonoured, is issued on behalf of a company including a firm, the person who was in charge of the company and responsible to the company for the conduct of the business, shall liable to be proceeded against and shall be deemed to be guilty of the offence. 8. 8. Hon'ble Supreme Court in Monaben Ketanbhai Shah and another v. State of Gujarat and others, reported in AIR 2004 Supreme Court 4274 , while dealing with the scope of the provisions of Section 141 of the Act of 1881 for proceeding against a person, held as follows:- "It is evident that in the complaint there are no averments against the appellants except stating in the title that they are partners of the firm. Learned counsel for the respondents/complainant contended that a copy of the partnership deed was also filed which would show that the appellants were active in the business. No such document was filed with the complaint or made part thereof. The filing of the partnership deed later is of no consequence for determining the point in issue. Section 141 does not make all partners liable for the offence. The Criminal liability has been fastened on those who, at the time of the commission of the offence, was in-charge of and was responsible to the firm for the conduct of the business of the firm. These may be sleeping partners who are not required to take any part in the business of the firm; they may be ladies and others who may not know anything about the business of the firm. The primary responsibility is on the complainant to make necessary averments in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no presumption that every partner knows about the transaction. The obligation of the appellants to prove that at the time the offence was committed they were not in-charge of and were not responsible to the firm for the conduct of the business of the firm, would arise only when first the complainant makes necessary averments in the complaint and establishes that fact. The present case is of total absence of requisite averments in the complaint." 9. In the instant matter, as stated earlier, the cheque concerned was signed by Ramesh Kumar as Proprietor of the firm Madhur Milan Enterprises and in the notice the complainant nowhere stated as to how the present petitioner is concerned with the cheque that was dishonoured or with the business relating to which the cheque was tendered. In the instant matter, as stated earlier, the cheque concerned was signed by Ramesh Kumar as Proprietor of the firm Madhur Milan Enterprises and in the notice the complainant nowhere stated as to how the present petitioner is concerned with the cheque that was dishonoured or with the business relating to which the cheque was tendered. In the complaint also a bald averment is made that the accused are partners of the firm Madhur Milan Enterprises but nothing is said about the responsibility and liability of the present petitioner who is coming forward with the case that he is not at all a partner of the firm. 10. True it is, that for taking cognizance only the averments in the complaint are required to be examined and not the defence advanced at preliminary stage, but section 141 of the Act of 1881 while fastening a vicarious liability on directors, secretaries and other executives of a company, also protects the persons who are not in charge of and were not responsible to the company for the conduct of the business of the company, to be proceeded under Section 138. In view of the provisions aforesaid it was necessary for the complainant to mention in the complaint that such a person was in charge or was responsible to the company for conduct of its business. No such averment exists in the complaint in question. It is nowhere stated that how the present petitioner, in any manner, connected with "Madhur Milan Enterprises" and also that he is having responsibility relating to that firm. A very vague and bald averment is made foundation to proceed against the petitioner, that is not at all permissible in view of the checks provided under Section 141 of the Act of 1881. As such, I am of the opinion that the trial court erred while taking cognizance against the present petitioner under the order impugned. 11. Before parting with the case, it would also be appropriate to examine the objection raised by learned Public Prosecutor regarding scope of interference by Court in the present matter while exercising powers under Section 482 Criminal Procedure Code The Court is conscious about its inherent powers as per provisions of Section 482 Criminal Procedure Code, which are required to be exercised very stringently and with circumspection. True it is, that the Court exercising inherent powers is not justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the complaint and also that the inherent powers do not confer a jurisdiction on the Court to act with whims or caprice. However, at the same time, the Court must exercise its inherent powers on being satisfied that even on simple reading of complaint no case as alleged is made out against the person sought to be tried.Such person should not be permitted to be dragged into an unwarranted litigation. Mere a vague assertion in complaint, without satisfying statutory requirement as per Section 141 of the Act of 1881 is such a circumstance, where Court should not keep off its authority to rescue a person from an unwarranted prosecution launched. 12. For the reasons stated above, this misc. petition under Section 482 Criminal Procedure Code deserves acceptance and, therefore, the same is allowed. The order impugned dated 5.6.2006 passed by Chief Judicial Magistrate, Barmer in Cr. Complaint No. 224/2006, is quashed to the extent it relates to summoning the present petitioner after taking cognizance against him under Section 138 of the Negotiable Instruments Act, 1881. Accordingly, the order passed by the revisional authority too stands quashed. The original record of the trial court as well as of the revisional court be remitted to the courts concerned forthwith.Petition allowed. *******