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PUNJAB & HARYANA HIGH COURT
V.S. Aggarwal, J.
Anita - Petitioner
versus
Anil K. Mehra & Ors. - Respondents
Criminal Revision No. 38 of 1994
Decided on 17-11-1995
Counsel for the parties:
For the Petitioner: Arun Jain.
For the Respondents: Chetan Mittal.
(ii) Criminal Procedure Code, 1973 - Section 219 - Negotiable Instruments Act, 1881 - Section 138 - Accused issued 9 cheques towards discharge of his liability & all cheques bounced - Complaint filed for offence under - Plea by accused that he could be charged & tried at one trial for any number of cheques not exceeding three Transaction being one where a specific amount was due against accused & he issued nine cheques which were dishonoured, section 219 Cr. P.C. will not be a bar to prosecution on one complaint. (Para 10)
(iii) Negotiable Instruments Act. 1891 - Section 138 - Cheque issued by a firm bounced - Demand notice issued to firm through partner who had drawn cheque Law does not require that said notice must be sent to each of the partners. (para 11)
(iv) Negotiable Instruments Act, 1881 - Sections 138 & 141 - Cheque issued by one partner on behalf of a firm bounced Complaint impleading all three partners of firm - No assertion in complaint that respondent Nos. 2 & 3 were incharge & responsible to the firm for conduct of business of said firm - Complaint can not proceed against these two partners. (Paras 12 to 14)
Result: Revision against respondent No.1 allowed but dismissed against Nos. 2 & 3.
Certainly. Based on the provided legal document, here are the key points:
When a person issues multiple cheques towards discharge of a specific liability, and some of those cheques bounce, the transaction is considered as one single transaction under Section 219 of the Criminal Procedure Code. Therefore, a complaint filed under Section 138 of the Negotiable Instruments Act in respect of all nine cheques is permissible and not barred by Section 219 (!) .
A complaint under Section 138 of the Negotiable Instruments Act is maintainable even if the cheques are post-dated, provided other conditions are met (!) .
Law does not require notice to be sent to every partner of a firm when a cheque issued by one partner on behalf of the firm bounces. Issuing notice to the firm through one partner who issued the cheque suffices for compliance with the legal requirement (!) (!) .
When a cheque issued by a firm bounces, and a demand notice is issued to the firm via a partner who issued the cheque, the notice is valid and sufficient. It is not necessary to send notices to each individual partner (!) .
A complaint that impleads all partners of a firm must specify their roles and responsibilities. If the complaint does not allege that other partners were responsible for the conduct of the firm's business or that the offence was committed with their consent or negligence, proceedings against those partners cannot be sustained (!) (!) (!) .
The person who issued the cheque, even if not in charge of the firm's conduct, can be prosecuted if it is established that they issued the cheque on behalf of the firm. The initial burden is on the complainant to prove that the accused was responsible for issuing the cheque (!) (!) .
Under the law, the term 'company' also includes a firm or other association of individuals for the purpose of Section 138. Therefore, partners in a firm can be prosecuted under the same provisions if they are responsible for the offence (!) (!) .
The complaint must specify that the accused was in charge of or responsible for the conduct of the firm's business at the time of the offence for proceedings against partners other than the one who issued the cheque to be valid. If such particulars are missing, proceedings against those partners are liable to be dismissed (!) (!) .
As for the individual who issued the cheque, if he is not explicitly shown to be responsible for the firm's conduct, the complaint may proceed against him if he issued the cheque and the other procedural conditions are satisfied (!) (!) .
In summary, proceedings can proceed against the person who issued the cheque on behalf of the firm, provided the complaint contains the necessary particulars establishing his role. Conversely, proceedings against other partners lacking such particulars are liable to be dismissed (!) .
Please let me know if you need further clarification or assistance.
V.S. Aggarwal. J. Since common questions are involved, therefore, all the three criminal revisions can be disposed of together.
2. The relevant facts are that petitioner Ms. Anita filed a complaint against the respondents asserting that respondent Anil K. Mehra as partner of the firm Ms. Mehra Enterprises, of which respondents 2 and 3 are also partners, issued ten cheques for Rs. 2066.66 paisa each in her favour. They had been drawn on the Central Bank of India. Sector 22-C, Ghandigarh to the discharge the debt of Rs. 20666.60 paise on account of the loan advanced. The details of the cheques and their numbers had been given in the complaint. The cheques had been presented for encashment and were received back with the remarks "exceeds arrangements". A notice was issued to the firm calling upon it to pay the amount of cheques within 15 days. It was received on 22.4.1989 but the payment was not made. Instead a reply was sent. The learned Judicial Magistrate summoned the respondents as accused persons.
3. On identical facts petitioner Santosh Kumari preferred another criminal complaint with respect to the offence under Section 138 of the Negotiable Instruments Act. Herein nine cheques of Rs. 2066.66 paise had been issued by respondent Anil K. Mehra of the same concern which have been dishonoured in a similar manner.
4. The third complaint was filed by Ms. Sangita against the respondents asserting that respondent Anil K. Mehra partner of the same firm issued ten cheques for Rs. 1550/- each and in a similar manner the same were dishonoured with the remarks "exceeds arrangement". The learned Judicial Magistrate had summoned the respondents as the accused.
5. The respondents had preferred criminal revisions in the Court of Sessions. The learned Additional Sessions Judge, Chandigarh vide the impugned judgment dated 15.7.1993 relying on the decision of this Court in the case of Gulshan Rai v. Anil Kumar Sawhney1, accepted the revisions and quashed the impugned complaints. The respondents were discharged.
6. Aggrieved by the said judgments of the learned Additional Sessions Judge, Chandigarh, the present revision petitions have been filed.
7. It is not subject matter of any controversy that decision of this Court referred to above in the case of Gulshan Rai (Supra) which was relied by the learned Additional Sessions Judge has since been set aside by the Supreme Court of India in the case titled Anil Kumar Sawhney v. Gulshan Rai2. The Supreme Court settled the controversy by holding that a post-dated cheque shall be deemed to have been drawn on the date it bears and the period of six months has to be reckoned from the date mentioned on the face of the cheque.
8. That being the position, the reasoning of the learned Additional Sessions Judge in this regard cannot be sustained. However, the respondents learned counsel took up certain other contentions so as to support the fact that the proceedings had to be quashed and the revision petitions must fail.
9. It was urged vehemently that in each of the complaint more than three cheques are alleged to have been issued while under Section 219 of the Code of Criminal Procedure when a person is accused of more offences than one of the same kind committed within the space of 12 months, he can be charged and tried at one trial for, any number of them not exceeding three. To
1. 1992 ISJ (Banking) 208.
2. 1994(1) RCR 150.
buttress this argument, the learned counsel relied on the judgment of Madras High. Court in the case of S. Kiran v. D. C. Corporation3.
10. In the case of S. Kiran (supra) certain goods had been sold by the complainant to the accused. After giving credit to various part payments made by the accused, certain sum was found due. Accused issued five cheques. When the said cheques were presented, they were returned dishonoured. After giving the notice a complaint was filed. It was held that the complainant will have to choose as to which of those five cheques, he will pick up the three regar
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