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2012 DIGILAW 460 (PNJ)

Sukhdev Raj v. Kay Cee

2012-03-19

NARESH KUMAR SANGHI

body2012
JUDGMENT Mr. Naresh Kumar Sanghi, J.:- Prayer in this petition is for quashing of the order dated 17.11.2009 passed by learned Additional Sessions Judge, Ludhiana, whereby criminal revision petition filed by the petitioners against the summoning order dated 06.06.2009 passed by learned Judicial Magistrate Ist Class, Ludhiana, was dismissed. 2. Brief facts of the case are that the petitioner-complainant Sukhdev Raj Jain had filed a complaint for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “the Act”) and Section 420 of Indian Penal Code, against M/s Kay Cee & Company, Shobir Mehra and Gautam Mehra on the broad allegations that Shobir Mehra and Gautam Mehra were partners of M/s Kay Cee & Company which took a loan of Rs.1,50,000/- from the petitioners and in order to discharge their legal debt and liability, issued a cheque dated 11.08.2008 for an amount of Rs.1,50,000/-. While issuing the cheque Shobir Mehra and Gautam Mehra had assured the petitioners that the cheque would be encashed on its presentation, however, the said cheque was bounced. After completing the formalities, the complaint was filed. After recording of the preliminary evidence, learned Judicial Magistrate Ist Class, Ludhiana, vide his order dated 06.06.2009 summoned Shobir Mehra to face trial under Section 138 of the Act. The complainant-Sukhdev Raj Jain was not satisfied with the order dated 06.06.2009 and hence, filed a criminal revision petition for summoning of Gautam Mehra also. The said revision petition was dismissed by learned Additional Sessions Judge, Ludhiana, on 17.11.2009 and hence, the present petition under Section 482, Cr.P.C challenging the orders dated 06.06.2009 and 17.11.2009 passed by learned Judicial Magistrate Ist Class, Ludhiana, and learned Additional Sessions Judge, Ludhiana, respectively. 3. I have heard the learned counsel for the parties and gone through the material available on record. 4. It is a fact that cheque was signed by Shobir Mehra. On the basis of complaint and preliminary evidence led by the complainant, learned Judicial Magistrate Ist Class, Ludhiana, proposed to summon Shobir Mehra only. 3. I have heard the learned counsel for the parties and gone through the material available on record. 4. It is a fact that cheque was signed by Shobir Mehra. On the basis of complaint and preliminary evidence led by the complainant, learned Judicial Magistrate Ist Class, Ludhiana, proposed to summon Shobir Mehra only. While filing the criminal revision petition, the petitioner-complainant had not challenged the order of learned Judicial Magistrate Ist Class, Ludhiana, dated 06.06.2009 with regard to the non-summoning of the alleged partnership firm M/s Kay Cee and Company, therefore, the order dated 06.06.2009 passed by learned Judicial Magistrate Ist Class has attained finality so far as the non-summoning of the firm M/s Kay Cee and Company is concerned. “Section 141 of the Act provides certain offences by companies and such companies includes a firm or other association of individuals. As per Section 141 of the Act, 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 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. In view of the provisions aforesaid, it is apparent that if a cheque issued on behalf of a company including a firm is dishonoured, the person who was in charge of the company and responsible to the company for the conduct of the business, shall be liable to be proceeded against and deemed to be guilty of the offence. In view of the provisions aforesaid, it is apparent that if a cheque issued on behalf of a company including a firm is dishonoured, the person who was in charge of the company and responsible to the company for the conduct of the business, shall be liable to be proceeded against and deemed to be guilty of the offence. Hon’ble Supreme Court in Monaben Ketanbhai Shah and another v. State of Gujarat and others, AIR 2004 SC 4274, while dealing with the scope of the provisions of Section 141 of the Act 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, were in-charge of and were 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.” 5. In the case in hand, the impugned cheque was signed by Shobir Mehra. The present case is of total absence of requisite averments in the complaint.” 5. In the case in hand, the impugned cheque was signed by Shobir Mehra. In the complaint, though, it has been mentioned that the partnership firm was being managed by Shobir Mehra and Gautam Mehra but mere mentioning a line in the complaint would not be sufficient for summoning of a partner. Some material has to be placed on record to establish that the person proposed to be summoned was taking active role in the day-to-day affairs of the firm/company. 6. True it is, that for taking cognizance only the averments in the complaint are required to be examined but Section 141 of the Act while fastening a vicarious liability of directors, secretaries and other executives of a company, also protects the persons, who are not incharge of and not responsible to the company/firm for the conduct of the business of the company, to be proceeded under Section 138 of the Act. It is no where stated in the complaint as to how and in what manner Gautam Mehra was managing the affairs of the firm. A vague and bald averment made in the complaint would not be sufficient to proceed against every partner. 7. The two Courts below have already rejected the prayer of the petitioners for summoning of Gautam Mehra to face trial. Where even on simple reading of complaint, no case is made out against Gautam Mehra, he cannot be permitted to be dragged into an unwarranted litigation. A vague assertion in complaint, without satisfying statutory requirement as per Section 141 of the Act is such a circumstance, where Court should not keep off its authority to rescue a person from an unwarranted prosecution launched. 8. I do not find any illegality, infirmity or perversity in the impugned orders. Therefore, finding no merits in the present petition, the same is hereby dismissed. ------------------ Nirmal Singh v. State of U.T. Chandigarh