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2006(1) Bankmann 455
DELHI HIGH COURT
J.P. Singh, J.
Madan Aggarwal — Petitioner
versus
State & Anr. — Respondents
Crl. M.C. No. 1376 of 2005 and Crl. M.A. Nos. 3985-86 of 2005
Decided on 24-1-2006
FOR THE PETITIONER:MS. C.M. CHOPRA AND MS. RAKHI NIGAM, ADVOCATES.
FOR THE RESPONDENTS:MS. SHOBHA, ADVOCATE AND MS. SANTOSH KOHLI, ADDL. P.P.
IMPORTANT POINT
In an offence of dishonour of cheque issued by a firm Section 141 Negotiable Instruments Act does not require that each and every partner of firm is to be issued notice and rather notice sent even to one partner operates as notice to firm and other partners.
Headnote:(I) NEGOTIABLE INSTRUMENTS ACT, 1881—SECTIONS 138 AND 141—DISHONOUR OF CHEQUE ISSUED BY COMPANY—PROSECUTION OF COMPANY AND ITS DIRECTORS ACCUSED 2 TO 9—PETITION TO QUASH SUMMONING ORDER AGAINST PETITION ACCUSED NO. 7 ON PLEA THAT NO PARTICULAR ROLE WAS ATTRIBUTED TO PETITIONER IN COMPLAINT—IF IN AVERMENTS IN COMPLAINT THERE WAS MENTION THAT ACCUSED WERE IN CHARGE AND RESPONSIBLE FOR CONDUCT OF BUSINESS THEREOF AND WERE PLAYING ACTIVE ROLE IN THE MANAGEMENT AND DAY TO DAY AFFAIRS OF ACCUSED COMPANY, PETITIONER ACCUSED COULD NOT BE HEARD TO SAY THAT HIS ROLE HAD NOT BEEN SPECIFIED IN COMPLAINT—PROSECUTION WAS NOT LIABLE TO BE QUASHED. (PARA 7)
(II) NEGOTIABLE INSTRUMENTS ACT, 1881—SECTIONS 138 AND 141—DISHONOUR OF CHEQUE ISSUED BY COMPANY—PROSECUTION OF COMPANY AND ITS DIRECTORS—NON-SERVICE OF INDIVIDUAL NOTICE TO THE DIRECTORS—NOTICE SERVED UPON ONE DIRECTOR FOR COMPANY WOULD MEET REQUIREMENT OF LAW AND PROCEEDINGS WERE NOT LIABLE TO BE QUASHED AGAINST A DIRECTOR ON GROUND THAT HE WILL NOT SERVED WITH NOTICE.
(PARA 8)
RESULT: PETITION DISMISSED.
J.P. SINGH, J.—THIS PETITION HAS BEEN FILED UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE FOR QUASHING THE SUMMONING Order DATED 27-7-1999 UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT PASSED BY METROPOLITAN MAGISTRATE DELHI, AND Order DATED 10-2-2005 ALSO PASSED BY METROPOLITAN MAGISTRATE, DELHI, DECLINING TO RECALL THE SUMMONING Order.
2. I HAVE HEARD MS. C.M. CHOPRA, LEARNED COUNSEL FOR THE PETITIONER, MS. SHOBHA, LEARNED COUNSEL FOR THE RESPONDENT NO. 2 AND MS. SANTOSH KOHLI, LEARNED ADDITIONAL PUBLIC PROSECUTOR, ON THE POINT OF ADMISSION, AND HAVE GONE THROUGH THE COPIES OF THE DOCUMENTS PLACED ON THE FILE.
3. AS PER COMPLAINT UNDER SECTION 138 READ WITH SECTIONS 141 AND 142 OF THE NEGOTIABLE INSTRUMENTS ACT, READ WITH SECTIONS 420 AND 406 OF THE INDIAN PENAL CODE, THE CASE OF THE COMPLAINANT IS THAT IT IS A GOVERNMENT COMPANY. ITS OBJECT IS TO PROMOTE SMALL SCALE INDUSTRIAL UNITS IN THE COUNTRY. IN PARA 3 IT IS ALLEGED THAT ACCUSED NO. 1 IS A COMPANY HAVING ITS REGISTERED OFFICE AT NEW DELHI. ACCUSED NOS. 2 TO 9 ARE PERSONS WHO ARE CONTROLLING THE BUSINESS AFFAIRS OF THE ACCUSED NO. 1 AND ARE IN-CHARGE OF AND RESPONSIBLE TO THE ACCUSED NO. 1 COMPANY FOR THE CONDUCT OF THE BUSINESS THEREOF. THEY ARE PLAYING ACTIVE ROLE IN THE MANAGEMENT AND IN THE DAY- TO-DAY AFFAIRS OF THE ACCUSED NO. 1.
4. THE ACCUSED NO. 1 WAS GRANTED FINANCIAL ASSISTANCE FOR PROCURING RAW MATERIAL. THE ACCUSED NO. 1 ISSUED A CHEQUE DATED 10.1.1999 IN THE SUM OF RS. 24,99,450/- AS PART PAYMENT OF ITS PECUNIARY LIABILITY IN FAVOUR OF THE COMPLAINANT, THE CHEQUE WAS SIGNED BY ACCUSED NOS. 2 AND 3 FOR AND ON BEHALF OF ACCUSED NO. 1. THE SAID CHEQUE WAS DISHONOURED BECAUSE THE ACCUSED HAD CLOSED THE ACCOUNT MEANING THEREBY THAT THE ACCUSED KNEW THAT THE CHEQUE WOULD BE DISHONOURED. IT IS ALLEGED IN PARA 8 THAT THE OFFENCE HAS BEEN COMMITTED BY ACCUSED NO. 1 COMPANY THROUGH AND WITH THE CONSENT AND CONNIVANCE OF ALL THE ACCUSED NOS. 2 TO 9. NOTICE WAS SENT BUT IN VAIN.
5. I HAVE ALSO GONE THROUGH THE SUMMONING Order DATED 27.7.1999 WHEREIN THE LEARNED METROPOLITAN MAGISTRATE, AFTER HEARING AND PERUSING THE RECORD, WAS OF THE OPINION THAT PRIMA FACIE CASE WAS MADE OUT AND ACCORDINGLY SUMMONED THE ACCUSED PERSONS. ACCUSED NO. 7, WHO IS THE PETITIONER BEFORE THIS COURT, FOR THE FIRST TIME MOVED AN APPLICATION DATED 5-3-2004, I.E. AFTER MORE THAN FOUR YEARS, FOR RECALL OF THE SUMMONING Order. THE APPLICATION WAS DISMISSED BY THE LEARNED METROPOLITAN MAGISTRATE VIDE Order DATED 10-2-2005.
6. THE PRAYER FOR RECALL OF Order WAS DECLINED IN VIEW OF THE SUPREME COURT RULING IN THE MATTER TITLED ADALAT PRASAD V. ROOP LAL JINDAL & ORS.1, WHERE IT HAS BEEN OPINED THAT THE MAGISTRATE CANNOT RECALL HIS OWN Order AND THE ONLY REMEDY AVAILABLE IS TO APPROACH THE HIGH COURT UNDER SECTION 482 OF THE CR. P.C. THERE IS NO QUARREL ABOUT THE LEGAL POSITION THAT A PETITION UNDER SECTION 482, CR .P .C. CAN BE FILED IN THE HIGH COURT BUT WHETHER THAT PETITION CAN BE ALLOWED DEPENDS UPON THE FACTS AND CIRCUMSTANCES OF THE GIVEN CASE AND THE ESTABLISHED LAW THAT THE INHERENT JURISDICTION IS TO BE EXERCISED SPARINGLY AND IN EXTRAORDINARY SITUATIONS. WHILE DEALING WITH THE OTHER LIMBS OF THE ARGUMENTS, THE QUESTION WHETHER THIS PETITION CAN BE ALLOWED WITHIN THE FOUR CORNERS OF SECTION 482, CR. P.C. WILL BE ALSO DEALT WITH.
7. NEXT THE LEARNED COUNSEL FOR THE PETITIONER HAS MAINLY CONTENDED THAT NO PARTICULAR ROLE HAS BEEN ATTRIBUTED TO THE PETITIONER IN THE COMPLAINT AND NO INDIVIDUAL NOTICE WAS SENT TO THE PETITIONER BY THE COMPLAINANT. THERE IS NO DISPUTE THAT THE PETITIONER WAS DIRECTOR AT THE TIME WHEN THE FINANCIAL ASSISTANCE WAS TAKEN FROM THE COMPLAINANT AND THE CHEQUE IN QUESTION WAS ISSUED. THIS PRIMA FACIE MEANS THAT THE PETITIONER MUST BE ATTENDING THE COMPANY MEETINGS BECAUSE THE ATTENDANCE IN THE MEETINGS IS COMPULSORY UNDER THE COMPANY LAW AND NO LOAN CAN BE RAISED OR FINANCIAL ASSISTANCE TAKEN OR CHEQUES ISSUED UNLESS THERE IS A RESOLUTION OF THE C
