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Andhra Pradesh High Court
MUKESH AGGARWAL - Appellant
Versus
STATE OF DELHI - RESPONDENT
Decided On: 10-04-01
Specific allegations are required to establish criminal liability, and every person responsible for the conduct of the company's business is liable for the offense under section 138 of the Negotiable Instruments Act, 1881.
Headnote:
Negotiable Instruments Act - Complaint under section 138 - Act Section 138 - Summary: The court discussed the provisions of section 138 of the Negotiable Instruments Act, 1881, which holds every person responsible for the conduct of the company's business liable for the offense. The court also referred to the decision in Municipal Corporation of Delhi vs. Ram Kishan Rohtagi, emphasizing the need for specific allegations to establish criminal liability. The court dismissed the petition, citing the lack of evidence to establish the respondent's criminal liability.
Fact of the Case:
The petitioner filed a complaint under section 138 of the Negotiable Instruments Act, 1881, alleging dishonor of a cheque. The accused filed a revision petition seeking to set aside the summoning order.
Finding of the Court:
The court dismissed the petition, stating that the provisions of the Indian Partnership Act were not relevant to establish criminal liability. It emphasized the need for specific allegations to establish the respondent's criminal liability.
Issues: The main issue was the criminal liability of the accused under section 138 of the Negotiable Instruments Act, 1881, and the relevance of the Indian Partnership Act in the matter.
Ratio Decidendi: The court emphasized the need for specific allegations to establish criminal liability and cited the provisions of section 138 of the Negotiable Instruments Act, 1881, to hold every person responsible for the conduct of the company's business liable for the offense.
Final Decision: The petition was dismissed for lacking substance and evidence to establish the respondent's criminal liability.
( 1 ) IN this petition filed under sections 482 and 483 Criminal Procedure Code seeking setting aside of order dated 9/8/1999 passed in Crl Revision No. 41/98 by an Additional Sessions Judge, the facts lie in a narrow compass. The petitioner filed a complaint on 27/3/1997 under section 138 of the Negotiable Instruments Act, 1881 (for short the act ) against M/s. Vogue Apparels also impleading its partners M. P. Singh, Ms. Roop Kataria @ Sonia, Jaimal Singh and Amarpreet Singh as accused 2 to 5 alleging that pursuant to the order dated 16/10/1996, the petitioner supplied cloth worth Rs. 4,68,389. 00 on 19/10/1996 vide invoice No. 206, Rs. 2,29,252. 00 on 19/10/1997 vide invoice No. 207, Rs. 4,821. 00 On 15/10/1996 vide invoice No. 205 to accused persons. Amounts of Rs. 625. 00 and Rs. 350. 00 had been added in invoice Nos. 206 and 207 towards cartage charges. It is further alleged that to liquidate the balance amount of Rs. 3,50,000. 00 on account of the supplies made, accused No. 2 on behalf of remaining accused issued cheque dated 28/12/1996 for Rs. 2,50,000. 00 drawn on Punjab National Bank, K. G. Marg, New Delhi to the petitioner. On receipt of memo dated 6/2/1997 regarding dishonour of said cheque second time, the petitioner got sent a legal notice dated 14/2/1997 to accused persons through registered AD covers as also under certificate of postings. However, despite service of notices the amount of cheque was not paid. Accused had thus committed offence punishable under section 138 of the Act. After recording pre-summoning evidence vide order dated 24/4/1998 the accused were summoned to face trial for the said offence. Feeling aggrieved, the accused No. 3 / respondent No. 2 herein filed aforesaid Crl. Revision No. 41/98 which was allowed by the order dated 9/8/1999 setting aside the summoning order qua her.
( 2 ) SUBMISSION advanced by Sh. A. K. Singla for petitioner was that respondent No. 2 was / is responsible for conduct of business carried in partnership in the name of M/s. Vogue Apparels alongwith other partners under the Indian Partnership Act, 1932 and the plea taken by her, she being not vicariously liable for the criminal liability arising out of dishonour of said cheque could have been gone into only during trial. Reliance was placed on the decision in Orient Syntex Ltd. and others vs. Besant Capital Tech Limited, Akola, 2000 (3) Crimes 450. Submission- is, however, without any merit. Section 141 of the Act which is material, runs as under:-
"141. Of fences 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. (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. Explanation - For the purposes of this section - (a) company means any body corporate and includes a firm or other association of individuals; and - (b) director , in relation to a firm, means a partner in the firm. "
( 3 ) IN the decision in Municipal Corporation of Delhi vs. Ram Kishan Rohtagi and others, (1983) 1 SCC 1 which was quoted wi
