Research › Search › Judgment

Himachal Pradesh High Court · body

2012 DIGILAW 114 (HP)

Kuldeep v. Mohar Mahesh Construction Pvt. Ltd.

2012-03-21

SURINDER SINGH

body2012
JUDGEMENT Surinder Singh, Judge. (Oral) The respondent was acquitted by the learned trial Court in Complaint Case No. 3616-3 of 10/09 decided on 15.6.2011 for the offence punishable under Section 138 of the Negotiable Instruments Act, in short “the Act”. Hence the present appeal by the complainant. 2. The complainant alleged that he being the sole proprietor of the firm, had purchased a Tata Tipper No. 1613, after raising loan from the Bank which was allotted registration No. HP 24B-2014. The respondent company hired his vehicle on contract basis @ 90,000/- per month, which remained deployed with the respondent company for about two months as such they were to pay an amount of ‘1 ,80,000/- to him but did not make the payment but after hot persuasion, respondent company issued cheque No. 929962 dated 26.5.2009 amounting to ‘49,500/- in favour of the complainant with an assurance to clear the dues within 2-3 days. Though the amount of ‘52,000/- was transferred by the respondent company in his account but the balance was not paid. When the complainant insisted for clearing the balance, they pretended that entire amount stood paid. The cheque aforesaid, when presented for encashment in the Bank, bounced back with the remarks, “insufficient funds”. On the receipt of the dishonour memo, a statutory notice was sent to the respondent company by registered post as well as under UPC calling upon them to make the payment within the statutory period but it did not yield any result. Thus the complaint was filed against the company through its Managing Director. 3. The notice was issued to the respondent company but no one put in appearance, ultimately NBWs were issued. Pursuant to that, one Shri Mohar Singh Thakur, Director of the respondent company had put in appearance and applied for cancellation of NBWs. He denied that he was the Managing Director of the Company. Neither any allegation was made against him, nor statutory notice of demand was issued to him. Yet the notice of accusation was put to him on 16.1.2010 which he denied. 5. To prove his case, the complainant examined CW2 Surinder Kumar with respect to dishonour memo. The complainant himself examined as CW3. He admitted having received an amount of ‘52,000/- in his account remitted by the respondent company and for balance amount, a cheque Ext. CW2/A of ‘49,500/- was allegedly issued. 5. To prove his case, the complainant examined CW2 Surinder Kumar with respect to dishonour memo. The complainant himself examined as CW3. He admitted having received an amount of ‘52,000/- in his account remitted by the respondent company and for balance amount, a cheque Ext. CW2/A of ‘49,500/- was allegedly issued. In cross examination, he stated that the cheque was issued by Mohar Singh Thakur, the Proprietor of the respondent Company. 6. Though the respondent admitted the issuance of the cheque as security by the Company in his statement recorded under Section 313 of the Code of Criminal Procedure but according to him, it had liquidated the entire amount of the complainant. 7. On the scrutiny of the aforesaid evidence, the learned trial Court dismissed the complaint. 8. Ms. Bhawana Dutta, learned counsel for the appellant vehemently argued that Section 138 of the Act raises a presumption in favour of the complainant. Respondent Mohar Singh Thakur admitted having issued the cheque which was dishnoured. The learned trial Court was not justified to brush-aside the cogent and reliable evidence and the learned trial Court wrongly concluded that the presumption stood rebutted. 9.I have examined the above contentions of the learned counsel for the appellant. 10. The complaint filed is only against the company through its Managing Director. Shri Mohan Singh Thakur clearly stated before the Court that he was only Director not the Managing Director of the company. Although in his statement under Section 313 of the Code of Criminal Procedure he admitted having signed the cheque but neither he has been impleaded as an accused nor statutory notice of demand was sent to him. The notice is only addressed in the name of the proprietor not even in the name of the Managing Director. Without making any allegation against any of the Directors or so to say there is even no mention in the complaint as to who had issued and signed the cheque. The proceedings against Mohar Singh were not maintainable and there is no allegation that he was in charge of and responsible to the company for the conduct of its business. 11. Section 141 of the Act deals with the offences by the Company which reads as under:- “Offences by companies. The proceedings against Mohar Singh were not maintainable and there is no allegation that he was in charge of and responsible to the company for the conduct of its business. 11. Section 141 of the Act deals with the offences by the Company which reads as under:- “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 proceeded against and punished 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. 2[“Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial 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 attribute to, any neglect on the part of, any director, Manager, secretary, or other office 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 purpose of this section. - (a)“Company” means any body corporate and includes a firm or other association of individuals; and (b)“Director”, in relating to a firm, means a partner in the firm.” 12. Explanation: For the purpose of this section. - (a)“Company” means any body corporate and includes a firm or other association of individuals; and (b)“Director”, in relating to a firm, means a partner in the firm.” 12. The perusal of the aforesaid Section reveals that when the company is the principle offender under Section 138 of the Act remaining persons are made offender by virtue of legal fiction created by the legislature as per its indictments hence the actual offence should have been committed by the Company, and then alone, the other two categories of persons can also become liable for the offence. The statutory notice, in the instant case has been issued to the proprietor of the respondent; whereas the company has the Managing Director and it was not even issued to the signatory of the cheque thereof, as noted above. The provision of Section 138 of the Act casts criminal liability punishable with imprisonment or fine or with both on a person who issues a cheque towards discharge of a debt or liability as a whole or in part and the cheque is dishonoured by the Bank on presentation. But the complaint lacks such averments. Further, Section 141 extends such criminal liability in case of a Company to every person who at the time of the offence, was incharge of, and was responsible for the conduct of the business of the Company. By a deeming provision contained in Section 141 of the Act, such a person is vicariously liable to be held guilty for the offence under Section 138 and punished accordingly. Section 138 is the charging section creating criminal liability in case of dishonour of a cheque and its main ingredients are:(i) Issuance of a cheque. (ii) Presentation of the cheque(iii)Dishonour of the cheque (iv)Service of statutory notice on the person sought to be made liable, and (v)Non-compliance or non-payment in pursuance of the notice within 15 days of the receipt of the notice. 13. In order to bring a case within the ambit of Section 141 of the Act the complaint must disclose the necessary facts which make a person liable. It is necessary to specifically aver in a complaint under Section 141 that at the time the offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company. It is necessary to specifically aver in a complaint under Section 141 that at the time 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 also cannot be said to be satisfied. 14. As already stated above, the statutory demand notice was not addressed/ sent to Mohar Singh. There is also no averment against him in the complaint nor he is impleaded as an accused. Further he is also not the Managing Director of the respondent company. Even the statutory notice has not been sent to the company through Managing Director. Therefore, the basis of the complaint itself is wrong and not in conformity with law. Thus, the complaint also suffers from mandatory requirements, and in these circumstances, against Mohar Singh, no presumption can be raised as is sought by the learned counsel for the appellant, in any capacity. Hence the complaint was rightly dismissed. 15. In view of the above stated position, the appeal is without any merit, the same is accordingly dismissed.