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2013 DIGILAW 1445 (PNJ)

Pahwa Chain Pvt. Ltd v. Avon Ispat and Power Ltd.

2013-11-07

Sabina

body2013
JUDGMENT Mrs. Sabina, J.:- This petition has been filed by the petitioner under Section 482 of the Code of Criminal Procedure, 1973 (Cr. P.C. for short) for quashing of criminal complaint No. 2625 dated 8.4.2009 (Annexure P-3) under Section 138 of the Negotiable Instrument Act 1881 read with Section 420 of the Indian Penal Code, 1860 and all the subsequent proceedings arising therefrom including the summoning order dated 20.7.2009 (Annexure P-6). 2. Learned counsel for the petitioners has submitted that the criminal proceedings in pursuance to the complaint in question were liable to be quashed as continuation of the same would be nothing but abuse of process of law. In support of his arguments, learned counsel has placed reliance on Central Bank of India vs. M/s Asian Global Ltd. and others, [2010(6) Law Herald (SC) 3726] : JT 2010 (7) SC 88, wherein, it was held as under:- “15. In this case, save and except for the statement that the Respondents, Mr. Rajiv Jain and Sarla Jain and some of the other accused, were Directors of the accused Companies and were responsible and liable for the acts of the said Companies, no specific allegation has been made against any of them. The question of proving a fact which had not been mentioned in the complaint did not, therefore, arise in the facts of this case. This has prompted the High Court to observe that the Bank had relied on the mistaken presumption that as Directors, Rajiv Jain, Sarla Jain and the other Directors were vicariously liable for the acts of the Company. Admittedly, except for the aforesaid statement, no other material has been disclosed in the complaint to make out a case against the respondents that they had been in charge of the affairs of the Company and were responsible for its action. The High Court, therefore, rightly held that in the absence of any specific charge against the Respondents, the complaint was liable to be quashed and the respondents were liable to be discharged.” 3. The High Court, therefore, rightly held that in the absence of any specific charge against the Respondents, the complaint was liable to be quashed and the respondents were liable to be discharged.” 3. Learned counsel has further placed reliance on National Small Industries Corporation Ltd. vs. Harmeet Singh Paintal and another, [2010(2) Law Herald (SC) 737] : JT 2010 (2) SC 161, wherein, it was held as under:- “25) From the above discussion, the following principles emerge : (i) The primary responsibility is on the complainant to make specific averments as are required under the law in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no presumption that every Director knows about the transaction. (ii) Section 141 does not make all the Directors liable for the offence. The criminal liability can be fastened only on those who, at the time of the commission of the offence, were in charge of and were responsible for the conduct of the business of the company. (iii) Vicarious liability can be inferred against a company registered or incorporated under the Companies Act, 1956 only if the requisite statements, which are required to be averred in the complaint/petition, are made so as to make accused therein vicariously liable for offence committed by company along with averments in the petition containing that accused were in-charge of and responsible for the business of the company and by virtue of their position they are liable to be proceeded with. (iv) Vicarious liability on the part of a person must be pleaded and proved and not inferred. (v) If accused is Managing Director or Joint Managing Director then it is not necessary to make specific averment in the complaint and by virtue of their position they are liable to be proceeded with. (vi) If accused is a Director or an Officer of a company who signed the cheques on behalf of the company then also it is not necessary to make specific averment in complaint. (vii) 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. This has to be averred as a fact as there is no deemed liability of a Director in such cases.” 4. (vii) 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. This has to be averred as a fact as there is no deemed liability of a Director in such cases.” 4. Learned counsel has next placed reliance on Subodh S.Salaskar vs. Jayprakash M.Shah and another, [2008(5) Law Herald (SC) 3167] : 2008 (3) RCR (Criminal) 875, wherein, it was held as under:- “29. The cheques were post dated ones. Admittedly they were issued in the year 1996. They were presented before the bank on a much later date. They were in fact presented only on 10.01.2001. When the cheques were issued, the accounts were operative. Even assuming that the account was closed subsequently the same would not mean that the appellant had an intention to cheat when the post dated cheques were issued. Even otherwise the allegations made in the complaint petition, even if given face value and taken to be correct in its entirety do not disclose commission of an offence under Section 420 of the Indian Penal Code. They do not satisfy the ingredients of the suit provision. It is, therefore, in the fact situation obtaining in the instant case, difficult to hold that the provisions of Section 420 of the Indian Penal Code were attracted.” 5. Learned senior counsel for the respondent, on the other hand, has submitted that the cheques in question were signed by petitioner No.2 on behalf of petitioner No.1. However, when the cheques in question were presented for encashment, they were dishonoured with the remarks ‘Account Closed’. 6. Case of the complainant, in brief, is that complainant company was having business dealings with M/s Pahwa Chains Pvt. Ltd. Cheques in question dated 20.12.2008 and 26.12.2008 were issued by petitioner No.1 in discharge of liability in part. At the time of issuance of the cheques in question all the Directors had assured that the cheques would be honoured on their presentation to the bank. However, when the cheques in question were presented for encashment, they were dishonoured with the remarks ‘Account Closed’. Notice was issued by the complainant to the petitioners qua dishonour of the cheques in question. However, payment was not made by the petitioners qua the cheques in question but the notice was duly replied by them.. 7. However, when the cheques in question were presented for encashment, they were dishonoured with the remarks ‘Account Closed’. Notice was issued by the complainant to the petitioners qua dishonour of the cheques in question. However, payment was not made by the petitioners qua the cheques in question but the notice was duly replied by them.. 7. In the reply filed by petitioners to the notice served by the complainant, it was averred that the cheques in question had been forged. The cheques in question had never been issued by the petitioners for existing liability. The last supply of the material was received by the complainant on 21.11.2005 and the payment in this regard was made vide cheque dated 21.1.2006. Purchase order dated 23.2.2006 was placed for supply of material and two cheques bearing No. 546344 in the sum of Rs. 2,00,000/- (undated) and No. 546345 with Rs. 3,00,000/- written below were sent in advance. However, no material was supplied by the respondent-complainant. Request was made to return the cheques in question but they were never returned by the complainant. 8. Thus, in the present case, admittedly, parties were having business dealings. Case of the petitioners is that they had issued one cheque in blank and another cheque in the sum of Rs. 2,00,000/- but the same was undated, qua purchase of material. However, the material in question was never supplied by the respondent. On the other hand, case of the complainant is that the cheques in question were issued in discharge of existing liability. The above pleas taken by both the sides can be gone into by the trial Court during trial and not by this Court while exercising jurisdiction under Section 482 Cr.P.C. Judgments relied upon by learned counsel for the petitioners fail to advance the case of the petitioners as they were based on different facts. 9. In the facts and circumstances of the present case, it would not be just and expedient to scuttle the criminal proceedings at the very threshold. However, petitioners would be at liberty to take up all the pleas available to them during trial. 10. Accordingly, this petition is dismissed. 11. 9. In the facts and circumstances of the present case, it would not be just and expedient to scuttle the criminal proceedings at the very threshold. However, petitioners would be at liberty to take up all the pleas available to them during trial. 10. Accordingly, this petition is dismissed. 11. However, personal appearance of petitioner No.3 Renu Pahwa before the trial Court, during trial, shall remain exempted subject to the following conditions:- (i) petitioner No.3 Renu Pahwa shall be represented through counsel; (ii) shall not delay/stall the trial proceedings; (iii) shall not dispute her identity as an accused; (iv) shall have no objection if the prosecution evidence is recorded in her absence but in the presence of her counsel (v) shall appear before the trial Court as and when required by the trial Court; and (vi) any other condition which the learned trial Court may impose. ---------0.B.S.0------------