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2018 DIGILAW 888 (HP)

Nisha Chaudhary v. Nirmla Devi

2018-05-14

SURESHWAR THAKUR

body2018
JUDGMENT Sureshwar Thakur, J —The instant petition is directed, against, the orders recorded, on 26.05.2017, by the learned trial judge, whereby, he, after taking cognizance, upon, an offence punishable under Section 138, of, the Negotiable Instruments Act (hereinafter referred to as the Act) , proceeded, to, order for issuance of summons, upon, the petitioner herein. 2. The learned counsel appearing, for the petitioner herein, has with much fervor, and, vehemence contended that, given the averments borne in the complaint, of, accused one Rajiv Malhotra, being, the sole proprietor, of, M/s Richman Consultant and Advisers, (i) thereupon, prima facie hence, when, the corporate entity aforesaid, is apparently averred in the complaint, to, be under the sole proprietorship of one Rajiv Malhotra, (ii) thereupon, ascription(s) , of, any incriminatory role vis-avis the petitioner herein, wanting in legal strength, besides rendition, of, orders, for, issuance of summons upon her, after cognizance being taken, upon, the apposite complaint, being, also visited with a stain, of, gross illegality, (iii) unless averments, are, borne in the complaint, bearing consonance, with, the substantive provisions, occurring in Section 141, of, the Act, provisions whereof stand extracted hereinafter, (iv) comprised in the accused/petitioner herein, being averred to be responsible, for, the conduct of business of the aforesaid company. Provisions of Section 141 of the Act read as under: "141 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 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: 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 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." He submits that, given, a, bare reading of the complaint, its rather, not, within the domain, of, the hereinabove extracted substantive provisions, of, Section 141, of, the Act, hence ascribing vis-a-vis the accused/petitioner herein, any role of hers managing the business, of, the company, thereupon, the impugned order warranting its reversal. However, the aforesaid submission, is, fully negated, by this Court pronouncing an order, on 15.3.2018, whereunder, on a submission made before this Court, by the learned counsel appearing, for, the petitioner, qua given respondent No.3, expiring, during the pendency of the instant petition before this Court, and, per se, thereupon, hence respondent No.2 headed by deceased respondent No.3, ipso facto hence dissolving, this Court proceeded to hence accept, the apt submission, and, also made an order in consonance therewith. Consequently, with, corporate entity, named, Richman Consultant and Advisers, being dissolved, hence, renders unattractable hereat the mandate, of Section 141 of the Act. 3. Be that as it may, the further sequel thereof, is that, with there occurring rather categorical averments, in the complaint, of, the petitioner herein, hence, aiding or abetting deceased Rajiv Malhotra, hence, to deliver the dishonoured negotiable amount vis-a-vis her, (i) thereupon, even if the dishonoured negotiable instrument, carries thereon, only, the signatures of deceased Rajiv Malhotra, (ii) nonetheless, with apt ascriptions, being borne therein vis-a-vis the accused/petitioner herein, qua hers abetting or aiding, deceased Rajiv Malhotra, in the latter committing the alleged offence, (iii) thereupon, despite, the negotiable instrument being signatured, solitarily, by deceased Rajiv Malhotra, does not ipso facto hence efface, the incriminatory role of the accused/petitioner, rather the order impugned before this Court is both, apt and tenable. 4. For the foregoing reasons, there is no merit in the instant petition, and, it is dismissed accordingly. The impugned order is maintained and affirmed. The parties are directed to appear on 28th May, 2018, before the learned trial Court. 4. For the foregoing reasons, there is no merit in the instant petition, and, it is dismissed accordingly. The impugned order is maintained and affirmed. The parties are directed to appear on 28th May, 2018, before the learned trial Court. However, it is made clear that the observations made hereinabove shall have no bearings, on the merits of the case. All pending applications also stand disposed of. Records, if any, received, be sent back forthwith.