IMPORTANT POINT
If accused impleaded in a complaint u/s 138 r/w 141 of N.I. Act is not a Company, question of an employee being proceeded against would not arise.

JUDGMENT

S.B. Sinha, J. — Leave granted.

2. Appellant before us was arrayed as accused No. 3 in the Complaint Petition filed by the first respondent herein, before the Chief Metropolitan Magistrate, Delhi which was registered as a Complaint Case No. 379/1/2003. The said complaint petition was filed for trying the accused persons named therein for commission of an offence under Section 138 of the Negotiable Instruments Act alleging that a cheque dated 15.8.2002 was issued by the accused Nos. 2 to 6 for a sum of Rs. 2 lacs drawn at Canara Bank which on presentation was dishonored and the accused despite notice, did not pay the said amount.

3. The status of the accused No. 1 was not disclosed in the array of the accused persons.

4. It was sought to be represented through Director(s)/Chairman/Managing Director, Proprietor(s), Incharge(s). Appellant herein was also described in similar capacity viz. “in charge, manager, director of the accused No. 1”. So were the other respondents.

5. In the complaint petition, however, it was alleged ;

“1. The complainant is a partnership duly registered with the Registrar of firms at Delhi, and Mohit Gupta is one of its partner and duly authorized and empowered to file this complaint for and on behalf of the complainant.

2. That the respondent No. 1 is a business concern and the respondent Nos. 2 and 6, alongwith other officer(s) etc., are its disclosed in charges, Managers, Director (s) and partners as they have through out been dealings with the complainant by representing themselves to be so responsible for the dealings and day to day working of the respondent No. 1.”

6. The learned Chief Metropolitan Magistrate issued summons on the other accused persons relying or on the basis of the averments made in the said complaint petition filed by the respondent herein. An application filed by the appellant herein for quashing the summons issued to him in an application filed before the High Court under Section 482 of the Code of Criminal Procedure was dismissed stating;

“...After the pre-summoning evidence was recorded the learned MM found that prima facie case was made out against all the accused persons and, therefore, summoned these accused. challenging these summoning orders accused No. 3 has filed this petition under Section 482 Cr. P.C. it is inter alia, contended that he was never the director of the said accused No. 1: cheque in question was not signed by him and that he was not responsible for the conduct of business of accused No. 1 it is the case of the petitioner that he was an employee of the accused No. 1. In support appointment letter dated 15.7.2000 is enclosed as per which petitioner was appointed as “Director-Production”. In this capacity he was to be responsible for entire production, including machine selection as well as labour, process and material management. Thereafter, vide letter dated 21.10.2001, which is also produced by the petitioner, he was asked to head the marketing department and was given the designation “Director-Marketing”. Prima facie, as Director-Marketing the petitioner was in-charge of the marketing division of the accused No. 1. I find that there are specific averment made in the complaint that the petitioner in that capacity was dealing with the complainant and was handling day-to-day affairs of the accused No. 1. Therefore, what the petitioner contends are the disputed questions of fact and it forms his defence which is to be led before the Trial Court. Such questions cannot be entertained in this petition under Section 482 Cr.P.C....”

6. A bare perusal of the complaint petition would show that the accused No. 1 was described therein as ‘a business concern’. It was not described as a Company or a partnership firm or an Association of Persons.

7. The concept of vicarious liability was introduced in penal statutes like Negotiable Instruments Act to make the Directors, partners or other persons, in charge of and control of the business of the Company or otherwise