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S.B.CR. MISC. PETITION NO.1359/2008
Naveen
v.
State of Rajasthan & Anr.
Date of Order :: 5th February, 2010
HON’BLE MR.JUSTICE GOVIND MATHUR
Mr. ML Khatri, for the petitioner.
Mr. MA Bhurat, PP, for the State.
….
This misc. petition as per provisions of
Section 482 Cr.P.C. pertains to a criminal complaint
preferred under Section 138 of the Negotiable
Instruments Act, 1881 (hereinafter referred to as “the
Act of 1881”) regarding dishonour of cheque of
Rs.1,85,000/- issued and signed by one Shri Ramesh
Kumar in the capacity of Proprietor, Madhur Milan
Enterprises. The Chief Judicial Magistrate, Barmer
under an order dated 5.6.2006 took cognizance of the
complaint for offence punishable under Section 138 of
the Act of 1881 and a revision petition challenging
the order aforesaid came to be rejected by learned
Additional Sessions Judge (Fast Track), Balotra vide
order dated 27.6.2008.
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The contention of counsel for the petitioner
is that the courts below materially erred while not
appreciating the fact that no liability upon the
present petitioner could have been fastened as he is
nothing to do either with Madhur Milan Enterprises or
with Ramesh Kumar who tendered the cheque concerned.
It is emphasised that there is nothing on record on
basis of which the petitioner could have been even
remotely connected with the proceedings under Section
138 of the Act of 1881.
Despite service, nobody has put in appearance to contest this petition on behalf of complainant Naresh Kumar son of Shankar Lal. This Court by order dated 7.1.2009 while admitting this
petition for hearing called for the record, thus, the
same is available for examination.
The Chief Judicial Magistrate took
cognizance against the present petitioner on the count
that in the complaint it is stated that “accused are
partners of firm Madhur Milan Enterprises”. Learned
Additional Sessions Judge while rejecting the revision
petition preferred by the petitioner held that the
issue as to who are partners of the firm Madhur Milan
Enterprises could be examined only after leading
evidence and, therefore, at this stage nothing wrong
was done by the trial court while taking cognizance
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under the order dated 5.6.2006 against the petitioner
too.
On examination of entire record, I found
that the cheque was signed by Shri Ramesh Kumar in the
capacity as Proprietor of the firm Madhur Milan
Enterprises. In the first notice, the complainant
nowhere mentioned that the petitioner is a partner of
the firm Madhur Milan Enterprises. In the cause title
of the complaint also accused No.1 Ramesh Kumar is
shown as Proprietor of the firm Madhur Milan
Enterprises, but nothing is said about the present
petitioner. It is only in body of the complaint it is
stated that “accused are partners of the firm Madhur
Milan Enterprises”.
Section 141 of the Act of 1881 provides
certain offences by companies and such companies
includes a firm or other association of individuals.
As per Section 141 of the Act of 1881, 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 of 1881 has been committed by a company and it is
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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 i.e. dishonoured, is issued
on behalf of a company including a firm, the person
who was in charge of the company and responsible to
the company for the conduct of the business, shall
liable to be proceeded against and shall be deemed to
be guilty of the offence.
Hon’ble Supreme Court in Monaben Ketanbhai
Shah and another v. State of Gujarat and others,
reported in AIR 2004 SC 4274, while dealing with the
scope of the provisions of Section 141 of the Act of
1881 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
5would 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,
was in-charge of and was 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.”
In the instant matter, as stated earlier, the
cheque concerned was signed by Ramesh Kumar as
Proprietor of the firm Madhur Milan Enterprises and in
the notice the complainant nowhere stated as to how
the present petitioner is concerned with the cheque
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that was dishonoured or with the business relating to
which the cheque was tendered. In the complaint also a
bald averment is made that the accused are partners of
the firm Madhur Milan Enterprises but nothing is said
about the responsibility and liability of the present
petitioner who is coming forward with the case that he
is not at all a partner of the firm.
True it is, that for taking cognizance only
the averments in the complaint are required to be
examined and not the defence advanced at preliminary
stage, but section 141 of the Act of 1881 while
fastening a vicarious liability on directors,
secretaries and other executives of a company, also
protects the persons who are not in charge of and were
not responsible to the company for the conduct of the
business of the company, to be proceeded under Section
138. In view of the provisions aforesaid it was
necessary for the complainant to mention in the
complaint that such a person was in charge or was
responsible to the company for conduct of its
business. No such averment exists in the complaint in
question. It is nowhere stated that how the present
petitioner, in any manner, connected with “Madhur
Milan Enterprises” and also that he is having
responsibility relating to that firm. A very vague and
bald averment is made foundation to proceed against
the petitioner, that is not at all permissible in view
of the checks provided under Section 141 of the Act of
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1881. As such, I am of the opinion that the trial
court erred while taking cognizance against the
present petitioner under the order impugned.
Before parting with the case, it would also
be appropriate to examine the objection raised by
learned Public Prosecutor regarding scope of
interference by Court in the present matter while
exercising powers under Section 482 Cr.P.C. The Court
is conscious about its inherent powers as per
provisions of Section 482 Cr.P.C., which are required
to be exercised very stringently and with
circumspection. True it is, that the Court exercising
inherent powers is not justified in embarking upon an
inquiry as to the reliability or genuineness or
otherwise of the allegations made in the complaint and
also that the inherent powers do not confer a
jurisdiction on the Court to act with whims or
caprice. However, at the same time, the Court must
exercise its inherent powers on being satisfied that
even on simple reading of complaint no case as alleged
is made out against the person sought to be tried.
Such person should not be permitted to be dragged into
an unwarranted litigation. Mere a vague assertion in
complaint, without satisfying statutory requirement as
per Section 141 of the Act of 1881 is such a
circumstance, where Court should not keep off its
authority to rescue a person from an unwarranted
prosecution launched.
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For the reasons stated above, this misc.
petition under Section 482 Cr.P.C. deserves acceptance
and, therefore, the same is allowed. The order
impugned dated 5.6.2006 passed by Chief Judicial
Magistrate, Barmer in Cr. Complaint No.224/2006, is
quashed to the extent it relates to summoning the
present petitioner after taking cognizance against him
under Section 138 of the Negotiable Instruments Act,
1881. Accordingly, the order passed by the revisional
authority too stands quashed. The original record of
the trial court as well as of the revisional court be
remitted to the courts concerned forthwith.
( GOVIND MATHUR ),J.
kkm/ps.