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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
Suraj Govindaraj, J.
Sri. H.N. Nagaraj S/o Late Heggur Nanjundappa – Petitioner
Versus
Sri. Suresh Lal Hira Lal S/o Late Hira Lal – Respondent
Criminal Petition No. 8257, 8235, 8262, 8277, 8279 of 2019
Decided On : 21-09-2022
Negotiable Instruments Act, 1881 - Section 138, 141, 145 – Criminal Procedure Code, 1973 - Section 200 and 482 - Borrowed Money - Cheque Dishonoured - Whether a proprietary concern is required to be arrayed as a separate party in a proceeding under Section 138 of N.I.Act - Whether sworn statement of Special Power of Attorney holder could be recorded in a proceeding under Section 138 of N.I. Act. [Para 11.3]
Finding of the Court: Insofar as a proprietary concern is concerned, as name indicates there can only be one proprietor and it is said proprietor who would be incharge of affairs of proprietary concern - Thus, it is not required for any pleading to be made as regards who is person in charge of a proprietary concern when there is only one proprietor – Court is unable to agree with decision of Hon’ble Panjab and Haryana High Court in case of SARDAR BUPENDER SINGH where definition of a company has been extended to a proprietary concern to contend that proprietary concern has a separate and independent existence - In Court considered opinion a proprietary concern cannot have any independent or separate existence dehors proprietor thereof - In view thereof, Court answer point no.1 by holding that in a proceeding under Section 138 of N.I.Act, arraying of a proprietor as an accused or a proprietary concern represented by proprietor would be sufficient compliance with requirements under Section 138 of N.I.Act, proprietor and proprietary concerareis not required to be separately arrayed as a party accused - In present case, such an assertion has been made - Be that as it may, during course of cross-examination if it is established that power of attorney holder has no knowledge regarding transaction, then complaint itself would fail and it is risk which has been taken by complainant by appointing power of attorney holder - In view of above, Court answer Point No.2 by holding that a power of attorney could file a complaint, could depose to an affidavit as also record his sworn statement in a proceedings under Section 138 of N.I. Act - Two contentions which have been addressed by learned counsel for petitioner being dealt with hereinabove, those two grounds not being sufficient for exercise of powers under Section 482 Cr.P.C – Court is of considered opinion that petitions not making any grounds are required to be dismissed and as such Criminal.
Result: Petitions dismissed.
ORDER :
1. The petitioner in Crl.P No.8257/2019 is before this Court seeking for the following reliefs:
b. quash the impugned order dated 24.07.2018 passed by the XX Addl. Chief Metropolitan Magistrate, Bengaluru in C.C.No.20484/2018 being the order taking cognizance of the offence p/u/s 138 of Negotiable Instruments Act vide Annexure-A;
c. quash the complaint in C.C.No.20484/2018 filed u/s 200 of Cr.P.C., for the offence p/u/s 138 of Negotiable Instrument Act on the file of XX Addl. Chief Metropolitan Magistrate, Bengaluru vide Annexure-B;
d. issue such other order or directions as this Hon’ble Court deems fit under the circumstances of the case including costs, in the interest of justice and equity.
2. The petitioner in Crl.P No.8235/2019 is before this Court seeking for the following reliefs:
b. quash the impugned order dated 5.12.2018 passed by the XX Addl. Chief Metropolitan Magistrate, Bengaluru in C.C.No.32057/2018 being the order taking cognizance of the offence p/u/s 138 of Negotiable Instruments Act;
c. quash the complaint in C.C.No.32057/2018 filed u/s 200 of CR.P.C., for the offence p/u/s 138 of Negotiable Instrument Act on the file of XX Addl. Chief Metropolitan Magistrate, Bengaluru;
d. issue such other order or directions as this Hon’ble Court deems fit under the circumstances of the case including costs, in the interest of justice and equity.
3. The petitioner in Crl.P No.8262/2019 is before this Court seeking for the following reliefs:
b. quash the impugned order dated 24.07.2018 passed by the XX Addl. Chief Metropolitan Magistrate, Bengaluru in C.C.No.20486/2018 being the order taking cognizance of the offence p/u/s 138 of Negotiable Instruments Act;
c. quash the complaint in C.C.No.20486/2018 filed u/s 200 of CR.P.C., for the offence p/u/s 138 of Negotiable Instrument Act on the file of XX Addl. Chief Metropolitan Magistrate, Bengaluru;
d. issue such other order or directions as this Hon’ble Court deems fit under the circumstances of the case including costs, in the interest of justice and equity.
4. The petitioner in Crl.P No.8277/2019 is before this Court seeking for the following reliefs:
b. quash the impugned order dated 24.07.2018 passed by the XX Addl. Chief Metropolitan Magistrate, Bengaluru in C.C.No.20482/2018 being the order taking cognizance of the offence p/u/s 138 of Negotiable Instruments Act;
c. quash the complaint in C.C.No.20482/2018 filed u/s 200 of CR.P.C., for the offence p/u/s 138 of Negotiable Instrument Act on the file of XX Addl. Chief Metropolitan Magistrate, Bengaluru;
d. issue such other order or directions as this Hon’ble Court deems fit under the circumstances of the case including costs, in the interest of justice and equity.
5. The petitioner in Crl.P No.8279/2019 is before this Court seeking for the following reliefs:
b. quash the impugned order dated 24.07.2018 passed by the XX Addl. Chief Metropolitan Magistrate, Bengaluru in C.C.No.20479/2018 being the order taking cognizance of the offence p/u/s 138 of Negotiable Instruments Act;
c. quash the complaint in C.C.No.20479/2018 filed u/s 200 of CR.P.C., for the offence p/u/s 138 of Negotiable Instrument Act on the file of XX Addl. Chief Metropolitan Magistrate, Bengaluru;
d. issue such other order or directions as this Hon’ble Court deems fit under the circumstances of the case including costs, in the interest of justice and equity.
6. In all the above matters, a private complaint under Section
Section 141 of Negotiable Instruments Act, 1881 reads as 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,....
Punishment under Section 138 of Act is not a means of seeking retribution but a means to ensure payment of money.
: Dishonour of cheque – In a case where complainant is a company, an authorized employee can represent the company – Once averment to this effect is made in complaint, it is sufficient for Magistrate....
A power of attorney holder can file a complaint under Section 138 of the NI Act if they have personal knowledge of the transaction, and this must be explicitly stated in the complaint.
Authorization for filing complaints under the N.I. Act is a curable defect; a company acts through its Board of Directors, and post-initiation ratification is permissible.
(1) Dishonour of cheque – In cases where payee/complainant is company, all that is necessary to be demonstrated before Magistrate is that complaint is filed in name of payee.(2) Dishonour of cheque ....
Vicarious liability cannot be attached to the employees of a sole proprietor concern under Sec. 141 of the NI Act.
A sole proprietorship cannot be prosecuted under Section 141 of the N.I. Act unless the proprietor is named in the complaint; the complaint was also quashed for being premature.
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