Back
2007 (2) Bankmann 98
PUNJAB AND HARYANA HIGH COURT
Satish Kumar Mittal, J.
O.P. Mehra —Petitioner
versus
Raj Kumari Bhalla
and Anr. —Respondents
Crl. Misc. No. 29461-M of 2003
Decided on 9-8-2006.
(ii) Negotiable Instruments Act, 1881—Section 138 and 142(1) —Dishonour of cheques—Filing of complaint by authorized representative—Validity—Complaint filed by husband of payee of cheque—He was neither the payee, nor holder in due course of the cheque—He is also not a general or special power of attorney holder of his wife—He has filed complaint on the basis of authority letter—In the said, letter, it was nowhere undertaken that executant would be bound by acts done and conducted on her behalf in respect of cheques which are subject matter of authority letter—Complaint not maintainable. (Para 12)
(iii) Criminal Procedure Code, 1973—Section 482—Inherent powers—Exercise of —In view of Adalat Prasad’s case 2004 (7) SCC 338, now the Magistrate cannot review his order or an application filed by summoned accused—If the summoned accused wants to show that he has been unnecessarily summoned, he has remedy to approach under Section 482 Cr.P.C. —This Court has ample power to quash proceedings, in case it comes to conclusion that continuation of proceedings in the trial Court is an abuse of process of the Court—Negotiable Instruments Act, 1881—Section 138.
Facts of the Case:
(A) Petitioner, OP Mehra, is 85 years old senior citizen, former Air Chief Marshal of India. He has been summoned by JMFC, Chadigarh in a complaint filed under Section 138 of N.I. Act against a company in which petitioner is a part time director. His application for recall of summoning order was dismissed by trial Court as not maintainable.
(B) Hence this petition under Section 482 of Cr.P.C.
Petitioner’s Contentions:
Petitioner’s submissions are two fold. Firstly, petitioner contends that there is no specific averment in the complaint that petitioner was in-charge of and responsible to the company for the conduct of business at the time of commission of alleged offence by the company.
Secondly, aforesaid complaint was not signed by, made and filed by payee or holder in due course of cheques, which are alleged to have been bounced. Shri V.M. Bhalla who has filed the complaint is not a general or special power of attorney holder of his wife, payee of cheques. He has filed complaint only on the basis of an authority letter, hence complaint is not maintainable.
Findings of the Court:
(i) Petitioner has never been a whole time director of the company never remained in-charge of and responsible for day-to-day affairs of company. He is not signatory of the cheque. Judicial Magistrate committed a grave illegality while issuing summons to petitioner for committing offence under Section 138 of the Act by the company.
(ii) Shri V.M. is neither a payee nor holder in due course of cheque. He is neither a General Power of Attorney or Special Power of Attorney holder of the payee of cheque. Complaint not maintainable.
Result: Petition allowed.
Satish Kumar Mittal, J. —Petitioner O.P. Mehra has filed this petition under Section 482 of the Code of Criminal Procedure for quashing of criminal complaint No.115 of 1998 (Annexure P1), filed by respondent No. 1 under Section 138 of the Negotiable Instruments Act (hereinafter referred to as ‘the Act’) as well as the summoning order and the other consequential proceedings.
2. The petitioner is 85 years old senior citizen, who has served the country for about 35 years in the Indian Air Force, from where he retired as Air Chief Marshal. He was awarded Padam Vibhushan in the year 1977. The grouse of the petitioner is that he has been unnecessarily impleaded as an accused in the aforesaid complaint filed by respondent No.1 under Section 138 of the Act and the Judicial Magistrate 1st Class, Chandigarh, without applying his mind and without there being sufficient averment and evidence against the petitioner on the record, he has summoned the petitioner as accused along with 8 other persons. Thus, the process of law and Court has been misused by respondent No. 1 to unnecessarily harass the old senior citizen.
3. In this case, respondent No. 1 filed criminal complaint No. 115 of 1998 under Section 138 of the Act. In the said complaint, 9 persons have been arrayed as accused. The petitioner has been arrayed as accused No. 9. In the complaint, it has been averred that a Public Limited Company styled as Sagar Sun Estates and Finance Limited issued two post-dated cheques, one for Rs. 10,000 (principal amount) and another for Rs. 1,608 (interest) to the complainant in discharge of its liability. The amount of Rs. 10,000 was deposited by the complainant with the said Company in Fixed Deposit. The said cheques were signed by accused No. 8, the authorized signatory of the said Company. When these cheques were dishonoured, the aforesaid complaint was filed by Smt. Raj Kumari Bhalla through her husband Shri V.M. Bhalla as her agent.
4. In the said complaint, after the preliminary evidence, all the nine accused were summoned by the Trial Court vide order dated 4.7.1998. After his service, the petitioner filed an application for re-calling the summoning order and for dismissal of the complaint qua him on the ground that the petitioner was only a part-time Director of the Company. He was never and at no point of time in-charge of and responsible to the company for the conduct of its business within the meaning of Section 141 of the Act, therefore, he is not vicariously liable for the alleged offence being committed by the Company. The said application was dismissed by the Trial Court vide order dated 30.4.2003, while holding that the said application was not maintainable. Thereafter, the petitioner filed the instant petition for quashing of the complaint, the summoning order and the consequent proceedings.
5. I have heard the arguments of learned Counsel for the parties and gone through the contents of the complaint, the summoning order as well as other documents annexed with the petitioner.
6. Counsel for the petitioner has made two-fold submissions. Firstly, he submitted that there is no specific averment either in the complaint itself or in the documents attached therewith that the petitioner was in-charge of and responsible to the Company for the conduct of its business at the time of the commission of the alleged offence by the Company. In para 6 of the complaint, it has been alleged that accused No. 8 had issued the cheques on behalf of the company, accused No. 2 is a Chairman-cum-Managing Director of the Company and accused Nos. 2 to 9 are in-charge of and responsible to the company for the conduct of its business. Counsel submitted that it has not been stated in the complaint or in the preliminary evidence by the complainant that the petitioner was in overall control of the day-to-day business of the Company. Counsel while relying upon decision of the Supreme Court in Katta Sujatha v. Fertilizers and Chemicals Travancore Limited
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
