Back
2005(1) Bankmann 356
ALLAHABAD HIGH COURT
Amar Saran, J.
V.K. Jain — Applicant
versus
State of U.P. & Anr. — Opp. Party
Crl. Misc. Application No. 3682 of 2002
Decided on 7.10.2004
Counsel for the Parties:
For the Appellant: Sri Veer Singh, K.K. Dwivedi and Sri R.P. Dwivedi, Advoctes.
For the Opp. Party:Sri G.S. Chaturvedi AGA and Sri R.C. Upadhyay, Advocate.
IMPORTANT POINT
When there is no allegation in complaint nor in statement of witnesses that a person was responsible for affairs of the firm and incharge at the time of commission of offence under Section 138 Negotiable Instruments Act, he cannot be prosecuted under Section 141 of NIA.
Headnote:Negotiable Instruments Act, 1881—Sections 138 and 141—Prosecution of Firm and its partner—Cr.P.C., 1973—Section 482—Application to quash proceeding against partner V.K. Jain—Cheque not signed by him—Complaint not alleging him to be incharge of affairs of firm—No such deposition in evidence—Whether prosecution of V.K. Jain liable to be quashed? (Yes)—Case Law referred.
Held: A bare perusal of the cheque also shows that it does not appear to have been signed by V.K. Jain. For launching a prosecution, under Section 138 with the aid of Section 141 there has to be an allegation in the complaint itself against every accused, that at the time when the offence was committed, he was in-charge of, and was responsible for the company for the conduct of the business of the company. This averment is absent in the complaint or in the statement of the witnesses. Under Section 202 Cr.P.C. (Para 3)
Held (after referring to case law): In this view of the matter the applicant cannot be prosecuted under Section 138 of the Negotiable Instruments Act and the prosecution against him in the aforesaid case is quashed.(Para 4)
Result: Application allready accordingly.
Hon’ble Amar Saran J.—Heard Sri R.P. Dwivedi, learned counsel for the applicant and Sri G.S. Chaturvedi, Senior counsel for opposite party No. 2.
2. The applicant has sought quashing of criminal proceeding under Section 138 read with Section 142 of the Negotiable Instruments Act pending as complaint Case No. 14 of 2000 Sri Ram Piston and Rings Ltd. v. M/s Yamuna Diesel and Electricals, Agra.
3. The contention of the learned counsel for the applicant is that signature on the impugned cheque is not that of the applicant V.K. Jain at all, but is that of A.K. Jain. This averment is made in paragraph 10 of the affidavit in support of his application. There is no denial of this averment in paragraph 9 of the counter affidavit, which only states that Ajay Kumar Jain was also a partner of M/s Yamuna Diesel and Electricals and another partner was V.K. Jain. A bare perusal of the cheque also shows that it does not appear to have been signed by V.K. Jain. For launching a prosecution, under Section 138 with the aid of Section 141 there has to be an allegation in the complaint itself against every accused, that at the time when the offence was committed, he was in-charge of, and was responsible for the company for the conduct of the business of the company. This averment is absent in the complaint or in the statement of the witnesses. Under Section 202 Cr.P.C. This legal proposition has been enunciated by the Apex Court in various decisions namely Katta Sujatha (Smt.) v. Fertilizers and Chemicals Travancore Ltd. and another1; K.P.G. Nair v. Jindal Menthol India Ltd.2; Anil Hada v. Indian Acrylic Ltd.3
4. In this view of the matter the applicant cannot be prosecuted under Section 138 of the Negotiable Instruments Act and the prosecution against him in the aforesaid case is quashed. However, the learned counsel for opposite party No. 2 contends that so far the firm is concerned, it can always be prosecuted in view of Section 141 of Negotiable Instruments Act, which permits the prosecution of the company, although the company can only be awarded a fine and there cannot be a sentence of imprisonment against it. As in this case, only the applicant V.K. Jain is seeking quashing of the criminal complaint against him, it will be open for the complainant to raise his contentions about the maintainability of the prosecution of the firm before the trial court.
5. With these observations, this application is allowed.
Application allready accordingly.
*********
