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2009(1) Bankmann 27 (All.)
ALLAHABAD HIGH COURT
M.K. Mittal, J.
Naruttam Baiharwani and
Anr. —Applicants
versus
State of UP and Anr. —Opp. Parties
Criminal Misc. Appln. No. 895 of 2004
Decided on 30.11.2007
For the Applicants:Mr. Dharmendra Singhal and Mr. Vikash Sharma, Advocates.
For the Opp. Parties: Mr. Pramod Bhardwaj, A.G.A.
IMPORTANT POINT
In a cheque bouncing case issued by company/firm, non-impleadment of company or firm is not fatal to the case.
Headnote:Negotiable Instruments Act, 1881—Section 138 and 141—Dishonour of cheque issued by firm—Prosecution against petitioners impleaded as accused applicant No. 1 owner of firm and accused applicant No. 2 as Manager and who had signed the cheque also—Petition to quash complaint and proceedings on ground that in absence of firm impleaded as accused, prosecution could not be maintained against petitioner and that there were no averments that applicant were in-charge of and responsible to firm for its day to day business—Non-impleadment of firm could not be said fatal to the case in view of Supreme Court judgment in Anil Hada’s case—Applicant accused having signed the cheque, he was liable to be prosecuted even in absence of necessary averments contemplated under Section 141 of the Act—Proceedings against applicant-accused No. 1 were however liable to be quashed. (Paras 7 to 12)
Result: Petition allowed partly.
M.K. Mittal, J.—The application has been filed for quashing the proceedings in Criminal Complaint Case No.1372 of 2003, Sunil Chawla v. Naruttam Baiharwani and Another, under Section 138 of Negotiable Instruments Act (hereinafter referred as Act) pending in the Court of Judicial Magistrate, Aligarh.
2. Heard Mr. Dharmendra Singhal, learned counsel for the applicants and learned AGA. No one appeared for opposite party No. 2 in spite of sufficient service.
3. The brief facts of the case are that opposite party No.2 filed a complaint in the Court of Judicial Magistrate, Aligarh alleging that he has a firm Chawla Settlement and the accused No.1 has a firm Naruttam Motor and Engineering Works. The accused No. 1 Naruttam Baiharwani is the owner of the firm and accused No.2 who is son of accused No.1 is Manager in the firm. The accused took Rs.1,00,000 on 20th July, 2000 for their business and the complainant gave this amount through cheque No.851494. The cheque was encashed by the accused persons. In lieu of this cheque, the accused gave a post-dated cheque of Bank of Baroda for Rs. 1,00,000 having No.0700349 and dated 5th April, 2003. The accused had assured that the cheque would be cashed when presented. The complainant presented this cheque in the bank on 9th April, 2003 but it was returned on 12th April, 2003 with the endorsement “the account closed”. The complainant gave a legal notice through his counsel dated 25th April, 2003 to accused persons separately and asked them to make the payment of his money within 15 days. Notices were served on the accused on 26th April, 2003 but no payment was made and then this complaint was filed on 4th June, 2003.
4. Learned Magistrate examined the complainant and his witness under Sections 200 and 202, Cr.P.C. and finding that a prima facie case was made out against the accused, directed to summon them by order dated 8th July, 2003. Feeling aggrieved, this application has been filed.
5. Learned counsel for the applicants has contended that according to the allegations as made by the complainant, the loan was taken for the business purpose and the cheque in question (Copy Annexure-1) also shows that it has been signed by Nirmal Baiharwani as Proprietor/Manager of the firm and, therefore, the complainant should have impleaded the firm also as party and in absence of the firm the complaint is not maintainable and is liable to be quashed. Learned counsel for the applicants has also contended that the complainant has not alleged in the complaint that the applicants were concerned with day-to-day business of the firm and on this ground also the complaint is liable to be quashed. Against it the learned AGA has contended that if the firm has not been impleaded as party the complaint cannot be dismissed and the case can proceed against the accused persons. He also contended that the applicants are Proprietors and Managers of the firm and are concerned with day-to-day business and the arguments as raised by the learned counsel for the applicants are not tenable.
6. Section 141 of the Act reads as under:
“141. Offences by companies— (l) 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:
Provided further that where a person is nominated as a Director of a Company by virtue of this holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the S
