Research › Search › Judgment

Madhya Pradesh High Court · body

2015 DIGILAW 835 (MP)

M. S. Dahiya v. State of M. P.

2015-08-12

S.C.SHARMA

body2015
ORDER : S.C. SHARMA, J. 1. The petitioner before this Court who is completely paralyzed and disabled person suffering from parkinson disease has filed the present Miscellaneous Criminal Case under section 482 of Code of Criminal Procedure for quashment of the order dated 1-6-2001 passed in Criminal Case No. 801/01 by the Judicial Magistrate First Class, Indore (Case No. 0/08). The facts of the case reveal that M/s. Gujarat Mercantile Credit Sahakarita Ltd., a Co-operative Bank has advanced loan to M/s. Cottage Creations Pvt. Ltd. Mr. Amar Jyoti Bindal and Mr. Diwanchand Bindal were the Directors of the company and Dr. V.K. Agrawal and M.S. Dahiya were the guarantors in respect of the loan granted by the society amounting to Rs. 37 lakhs. 2. As many as 14 cheques were issued under the signatures of Amar Jyoti Bindal, Director of M/s. Cottage Creations Pvt. Ltd., and they were presented for encashment. Some of the cheques were dishonoured. The cheques were issued in the year 1998 and 1999 drawn on Central Bank of India. Thereafter, as cheques were dishonoured a committee was constituted on behalf of the bank and a meeting took place as stated in the complaint with Mr. Amar Jyoti Bindal and three persons namely Mr. Nagori, Dr. Akshay Dubey and Mr. P.K. Dua appearing on behalf of the society. 3. Shri A.J. Bindal who is also one of the accused, in the meeting agreed to pay a part payment of Rs. 1,09,573 and tendered a fresh cheque on 20-3-2001 drawn on Central Bank of India, Gwalior. The cheque was again submitted to the bank by society, however it was returned with a remark "Insufficient Funds". There after a complaint has been filed under sections 138 and 142 of the Negotiable Instruments Act and the present petitioner has been implicated as respondent No. 5. 4. The present petitioner is a Chartered Accountant and he was a guarantor in respect of loan transaction which took place between Gujarat Mercantile Credit Sahakarita Ltd., and M/s. Cottage Creations Pvt. Ltd. He was not the Managing Director nor the Director of the company in question and was not at all remotely related with M/s. Cottage Creations Pvt. Ltd. In fact he is a Chartered Accountant and he was a partner at a relevant point of time with M/s. Nagori and Dahiya, which is a firm of Chartered Accounts. 5. 5. This Court has carefully gone through the complaint filed by M/s. Gujarat Mercantile Credit Sahakarita Ltd. It does not contain material to implicate the present petitioner. He was neither borrower nor has issued any cheque at any point of time making him liable for action under sections 138 and 142 of the Negotiable Instruments Act. 6. The learned counsel has argued that the Judicial Magistrate, First Class by passing a two line order has simply stated that he has gone through the evidence and the evidence makes it clear that a case is made out for proceeding ahead under section 138 of Negotiable Instruments Act and he has taken cognizance of the same Summons were issued on 1-6-2001. The petitioner did not receive the summon however, received a warrant on 4-8-2004 and appeared before the trial Court and as he was suffering from Parkinson disease could not approach this Court in time. 7. This Court has carefully gone through the entire material on record and is of the considered opinion that it was not the petitioner, who was a signatory of the cheque which is the subject-matter of dispute nor he has given any undertaking in respect of the repayment of loan by issuing any cheque nor he was a member to the meeting which took place between the bank and the borrowers and therefore, he has been falsely implicated in the complaint. Section 138 of the Negotiable Instruments Act reads as under:-- 138 Dishonour of cheque for insufficiency, etc., of funds in the account. Section 138 of the Negotiable Instruments Act reads as under:-- 138 Dishonour of cheque for insufficiency, etc., of funds in the account. -- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless-- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. 8. In light of the aforesaid statutory provision of law, by no stretch of imagination, keeping in view the allegations made in the complaint as none of the cheques was not issued by the present petitioner, he cannot be brought within the purview of sections 138 and 142 of the Negotiable Instruments Act. The Delhi High Court in the case of Hardeep Singh Nagra vs. State in paragraph 15 is held as under:-- 15. In Nitin Kumar and Others Vs. The Delhi High Court in the case of Hardeep Singh Nagra vs. State in paragraph 15 is held as under:-- 15. In Nitin Kumar and Others Vs. NCT of Delhi and Another-->, it was found that the complainant had generally alleged in the plaint that the accused had been actively involved in the affairs of accused No. 1. Noticing that there was no allegation in the complaint that the petitioner was in overall control of the day to day business of the company nor are there any such factual averment from which such a control could be inferred nor there was any allegation in the complaint that the petitioner was party to any decision to issue cheque in question or to get it dishonoured, it was held by this Court that the case could not be brought within the purview of sub-section (2) of section 141 of the Negotiable Instruments Act. "In the cases before this Court, there is no allegation either in the complaint or in the affidavit filed by the complainant that the petitioner Hardeep Singh Nagra was party to a decision to issue the cheques which, when presented to the bank, were dishonoured or to get those cheques dishonoured. Admittedly, none of the cheques was signed by him. There is no averment in the complaint that the cheques were issued and then dishonoured with the consent or connivance of the petitioner or that the same was attributable to any negligence on his part. Therefore, the case against the petitioner cannot be brought within the purview of sub-section (2) of section 141 of the Negotiable Instruments Act. For the reasons given in the preceding paragraphs, I see no good reason to recall the order dated 21st January, 2010. The applications are devoid of any merit and are hereby dismissed." 9. In light of the aforesaid judgment as none of the cheques were issued by the present petitioner and the allegations do not implicate the petitioner, he cannot be brought within the purview of sections 138 and 142 of the Negotiable Instruments Act 1881. 10. The Apex Court in the case of K.K. Ahuja Vs. V.K. Vora and Another, (2009) 10 SCC 48 Page 48 in paragraphs 28 and 29 is held as under:-- "28. 10. The Apex Court in the case of K.K. Ahuja Vs. V.K. Vora and Another, (2009) 10 SCC 48 Page 48 in paragraphs 28 and 29 is held as under:-- "28. If a mere reproduction of the wording of section 141(1) in the complaint is sufficient to make a person liable to face prosecution, virtually every officer/employee of a company without exception could be impleaded as accused by merely making an averment that at the time when the offence was committed they were in charge of and were responsible to the company for the conduct and business of the company. This would mean that if a company had 100 branches and the cheque issued from one branch was dishonoured, the officers of all the 100 branches could be made accused by simply making an allegation that they were in charge of and were responsible to the company for the conduct of the business of the company. That would be absurd and not intended under the Act. 29. As the trauma, harassment and hardship of a criminal proceedings in such cases, may be more serious than the ultimate punishment, it is not proper to subject all and sundry to be impleaded as accused in a complaint against a company, even when the requirements of section 138 read and section 141 of the Act are not fulfilled." 11. There is no material on record to establish that the petitioner was employee/Officer of the Company and has committed any act or omission or was responsible for the conduct of the business of the company and therefore, in light of the aforesaid judgment the petitioner cannot be held liable and the petition preferred under section 482 deserves to be allowed to the extent it relates to the petitioner. Resultantly, the petition preferred under section 482 is allowed and the order dated 1-6-2001 to the extent cognizance has been taken against the petitioner is hereby quashed. Certified copy as per rules.