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2012 DIGILAW 1558 (PAT)

Saumitra Gaur v. State Of Bihar

2012-11-09

HEMANT KUMAR SRIVASTAVA

body2012
ORDER (1) Both the above stated petitions were ordered to be placed side by side vide order dated 18.01.2012 passed in Cr. Misc. No. 29494 of 2010 and accordingly, both the above stated petitions were heard together and a common order is being passed in both the above stated petitions. (2) Petitioner, while invoking the extra ordinary jurisdiction of this Court, prayed for quashing the entire criminal prosecution arising out of Complaint Case No. 246 C of 2009 as well as order dated 17.04.2009 passed by Sri Uma Shankar, Judicial Magistrate Supaul in Complaint Case No. 381 C of 2009 by which and whereunder the learned Judicial Magistrate having found prima facie case under Section 138 of Negotiable Instrument Act ordered to issue summons against the petitioner. (3) Opposite Party No. 2, namely, Brajesh Kr. Singh filed Complaint Case No. 246 C of 2009 as well as Complaint Case No. 381 C of 2009 against the petitioner and three others alleging therein, inter alia, that petitioner and other accused established Anushri Cold Storage Private Limited at Katihar. Accused no. 1, namely, Sharad Gaur was Managing Director of the aforesaid cold storage whereas petitioner and accused no. 3, namely, Pritam Kumar Choudhary were Board of Directors of the aforesaid cold storage. He further alleged that accused no. 1, namely, Sharad Gaur had visiting term with one Kaushal Kumar Tiwary who happened to be friend of Opposite Party No. 2. The Opposite Party No. 2 also developed intimacy with accused no. 1. The petitioner and other accused were in need of money to run the business of cold storage and accused no. 1 namely, Sharad Gaur requested the Opposite Party No. 2 to give rupees five lacs in loan with assurance that he would return the aforesaid amount to him within one year and having relied upon the aforesaid assurance, Opposite Party No. 2 gave rupees four lacs as well as his son, namely, Piyush Kumar gave rupees one lac in cash to accused no. 1 on 24.11.2006 and later on, accused no. 1 gave seven cheques on 15.12.2008 to Opposite Party No. 2 and the aforesaid cheques were issued in respect of account no. 8542 stood in the name of Anushri Cold Storage Private Limited. The Opposite Party No. 2 deposited five cheques amounting to Rs. 1 on 24.11.2006 and later on, accused no. 1 gave seven cheques on 15.12.2008 to Opposite Party No. 2 and the aforesaid cheques were issued in respect of account no. 8542 stood in the name of Anushri Cold Storage Private Limited. The Opposite Party No. 2 deposited five cheques amounting to Rs. 2, 09,000/- in S.B. Account No. 11114010101 on 17.12.2008 but the concerned bank returned all the aforesaid five cheques to Opposite Party No. 2 with information that the fund was insufficient and after that Opposite Party No. 2 gave a legal notice to accused no. 1 on 24.01.2009 but petitioner and other accused did not give any response to the aforesaid notice nor notice returned to the Opposite Party No. 2 and after that Opposite Party No. 2 filed complaint case bearing Complaint Case No. 246 C of 2009 against the petitioner and other accused. The Opposite Party No. 2 further alleged in Complaint Case No. 381 C of 2009 that rest two cheques were deposited by him on 03.02.2009 in State Bank of India branch Katihar but again the aforesaid two cheques became bounced as there was insufficient money in the account of petitioner and other accused and, thereafter, after giving legal notice, the Opposite Party No. 2 again filed complaint case bearing Complaint Case No. 381 C of 2009 within statutory period. (4) In Complaint Case No. 246 C of 2009, the matter is still pending for enquiry whereas in Complaint Case No. 381 C of 2009, having found prima facie case under Section 138 of Negotiable Instrument Act concerned court ordered to issue summons against the petitioner and other accused. (5) Notices were issued to Opposite Party No. 2 and Opposite Party No. 2 filed counter affidavit. (6) Learned counsel appearing for the petitioner submits that according to complaint case itself, the accused no. 1, namely, Sharad Gaur took loan in question and issued cheques in his personal capacity and, therefore, no responsibility can be fixed upon the petitioner. It is further contended by him that it is well settled principle of law that provision of Section 138 of Negotiable Instrument Act is applicable to the person who issues the cheque. 1, namely, Sharad Gaur took loan in question and issued cheques in his personal capacity and, therefore, no responsibility can be fixed upon the petitioner. It is further contended by him that it is well settled principle of law that provision of Section 138 of Negotiable Instrument Act is applicable to the person who issues the cheque. Learned counsel for the petitioner relied upon a decision reported in 2012 (3) PLJR 178 ( Birendra Kumar Sharma vs. The State of Bihar and Anr.) in which it has been held by this Court that Section 138 of Negotiable Instrument Act is applicable only against the drawer of the cheque. It is further contended by him that no legal notice has been given to petitioner before filing the complaint petition and therefore, the complaint petition is not maintainable. In support of his contention, he referred the decision of Shakti Travel and Tours Vs. State of Bihar and Another reported in (2002) 9 SCC 415 in which it has been held by the Apex Court of this country that Complaint not asserting that demand notice had been served on the accused, the complaint itself is not maintainable. It is further contended by him that even if it assumed that loan was taken on behalf of the company and accused no. 1 issued cheques on behalf of the above stated company, then also, it was essential for the complainant to specifically plead in his complaint petition that at the time of the offence petitioner was in charge of and responsible for the conduct of business of the company and without this averment being made in the complaint, the requirements of Section 141 cannot be said to be satisfied. It is further contended by him that in the entire complaint petition, the Opposite Party No. 2 has, nowhere, pleaded that petitioner was in charge of and responsible for the conduct of business of the cold storage and, therefore, in absence of the aforesaid pleading petitioner cannot be prosecuted. It is further contended by him that in the entire complaint petition, the Opposite Party No. 2 has, nowhere, pleaded that petitioner was in charge of and responsible for the conduct of business of the cold storage and, therefore, in absence of the aforesaid pleading petitioner cannot be prosecuted. In support of his contention, he referred the decision of S.M.S Pharmaceuticals Ltd. vs. Neeta Bhalla and Another reported in (2005) 8 SCC 89 in which it has been held by Apex Court of this country that Under Section 141 of Negotiable Instrument Act what is required is that the persons who are sought to be made criminally liable should be, at the time the offence was committed, in charge of and responsible to the company for the conduct of the business of the company and every person connected with the company shall not fall within the ambit of the provision and it is only those persons who were in charge of and responsible for the conduct of business of the company at the time of commission of an offence, who will be liable for criminal action. Another decision cited on behalf of the petitioner is K.K. Ahuja vs. V.K. Vora and Another reported in (2009) 10 SCC 48 in which it has been held by Apex Court of this country that A person is vicariously liable under Section 141 (1) of Negotiable Instrument Act, only if he is responsible to the company for the conduct of business of the company and also in charge of business of the company and to prosecute a person there must be specific averment in complaint petition about his position, duties and role in the aforesaid company. Learned counsel for the petitioner also relied upon the decision of N.K. Wahi vs. Shekhar Singh and Others reported in (2007) 9 SCC 481 in which it has been held by the Apex Court that for launching a prosecution against the alleged Directors, there must be a specific allegation in the complaint as to the part played by them in the transaction and the allegation should be clear and unambiguous as to how the Directors were in charge and responsible for the conduct of the business of the company. Another decision cited on behalf of the petitioner is Sabitha Ramamurthy and Another vs. R.B.S. Channabasavaradhya (2006) 10 SCC 581 in which it has been held by the Apex Court that Complaint not containing any statement that the accused was in charge of the business of the Company at the material time nor the statement of prosecution witnesses alleging that accused was in charge of the business of the company, requirements of Section 141 not complied with and it is not necessary to reproduce the wordings of Section 141 specifically and what is required is a clear statement of fact to enable the court to arrive at a prima facie opinion that the accused are vicariously liable for the offence by the company. (7) On the strength of aforesaid decisions, learned counsel for the petitioner submits that the Opposite Party No. 2 has not pleaded in the complaint petition as to how petitioner is related with the business of the cold storage and, therefore, even if it assumed that petitioner was director of the aforesaid cold storage, then also, in absence of the above stated pleading petitioner cannot be prosecuted for the offence punishable under Section 141 of the Negotiable Instrument Act. (8) On the other hand, learned counsel appearing for Opposite Party No. 2 refuted the above stated submissions arguing that accused no. 1, namely, Sharad Gaur took loan to develop the business of cold storage and admittedly, petitioner is one of the directors of the aforesaid company. He further submitted that the aforesaid accused no. 1, Sharad Gaur issued an agreement mentioning this fact that the aforesaid loan was taken for cold storage which is evident from Annexure-1 to the counter affidavit. It is further contended by him that the cheques in question were also issued in respect of the account which stood in the name of the above stated cold storage. So, all the aforesaid facts go to show that accused no. 1 had taken loan on behalf of the company and also issued cheques in question on behalf of the company. It is further contended by him that it has, specifically, been pleaded in complaint petition that petitioner being director of the above stated cold storage was responsible for business of the aforesaid cold storage and, therefore, petitioner cannot escape from his liability. It is further contended by him that it has, specifically, been pleaded in complaint petition that petitioner being director of the above stated cold storage was responsible for business of the aforesaid cold storage and, therefore, petitioner cannot escape from his liability. (9) Having heard the rival contentions of both the parties, I have gone through the record. It is an admitted position that the loan was taken by accused no. 1, Sharad Gaur and it was accused Sharad Gaur who issued cheques in question in favour of the Opposite Party No. 2. It is the case of the Opposite Party No. 2 that accused no. 1 took the aforesaid loan and later on, issued cheques on behalf of his company and petitioner was one of the directors of the aforesaid company. Section 141 of the Negotiable Instrument Act deals with the offences committed by the companies and says that 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. (10) In S.M.S Pharmaceuticals Ltd. vs. Neeta Bhalla and Another (Supra), the Apex Court of this country held that It is necessary to give specific averment 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 cannot be said to be satisfied. Furthermore, in the aforesaid decision, the Apex Court held that Merely being a Director of a company is not sufficient to make the person liable under Section 141 of the Act and a Director in a company cannot be deemed to be in charge of and responsible to the company for the conduct of its business. Furthermore, in the aforesaid decision, the Apex Court held that Merely being a Director of a company is not sufficient to make the person liable under Section 141 of the Act and a Director in a company cannot be deemed to be in charge of and responsible to the company for the conduct of its business. The requirement of Section 141 is that the person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time and this has to be averred as a fact as there is no deemed liability of a Director in such cases. (11) In the present case, even if it assumed that petitioner is director of the above stated cold storage, then also, no prosecution can be launched against him unless it is specifically pleaded in the complaint petition that at the time the offence was committed he was in charge of and responsible for the conduct of business of the company. From perusal of the entire complaint petition, it is explicit clear that no such averment has been made in the complaint petition. Furthermore, admittedly, petitioner is not drawer of the cheque nor took loan from the Opposite Party No. 2 either in his personal capacity or on behalf of the above stated cold storage. Therefore, in view of the aforesaid decisions as well as in view of Section 141 of the Negotiable Instrument Act, in my view, the continuance of prosecution of the petitioner is nothing but only an abuse of process of the court. (12) On the basis of aforesaid discussions, the entire proceeding of Complaint Case No. 246 C of 2009 as well as order dated 17.04.2009 passed by Sri Uma Shankar, Judicial Magistrate Supaul in Complaint Case No. 381 C of 2009 are, hereby, quashed in respect of petitioner only. (13) Accordingly, both the above stated petitions are allowed and disposed off on admission stage itself.