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2009(2) Crimes 406 (Del.)
DELHI HIGH COURT
Kailash Gambhir, J.
M. Abdul Haque and
Another —Petitioners
versus
Birla Yamaha Ltd. —Respondent
Criminal M.C. No. 2235 of 2007 and
1399 of 2008
Decided on 3.11.2008
For the Petitioners:Mr. S. Nanda Kumar and Mr. Satish Kumar, Advocates.
For the Respondents:Mr. Virender Ganda and Mr. S.K. Giri, Advocates.
IMPORTANT POINT
In order to fasten vicarious liability against the partners of the firm, there must be clear, specific and unambiguous averment made in the complaint. There should be clear and unambiguous averment as to how the partners are in charge and responsible of the conduct of the business or the partnership firm.
Headnote:Negotiable Instruments Act, 1881—Sections 138 and 141—Dishonour of cheque—Question whether petitioner could be prosecuted on account of fact that once petitioner No. 2 was partner in a firm on whose behalf one of the partners issued cheques in his individual and personal capacity and from his own Saving Bank account? No.
Held: To launch a prosecution against the partners there must be a specific allegation in the complaint as to the part played by them in the transaction in order to fasten vicarious liability against the partners of the firm, there must be clear, specific and unambiguous averment made in the complaint. There should be clear and unambiguous averment as to how the partners are in charge and responsible of the conduct of the business or the partnership firm. (Para 8)
In the instant case, the situation is little different. In the case at hand, the cheque has been issued from the personal account and in the personal capacity by one of the partners of the partnership firm, Mr. P. Mohankrishnan, where the cheques in question are issued by a person in his individual capacity and not as partner of any firm the firm is not an accused in this case any more, and the remaining partner of any firm other than the said person cannot be summoned to stand trial as persons responsible to the firm for conduct of its business. Unlike in the case of a cheque drawn by a person in his individual capacity, in the case of cheque drawn by a person in charge of and responsible to the firm, criminal liability is fastened not only as the de facto drawer of the cheque but also on the firm as well as any partner, manager secretary or other officer of the firm, provided that such person is guilty of act or omission referred to in Section 141(2) of the Act. What then emerges is that in a case where the offence is committed by a firm, the criminal liability is not confined to the signatory of the cheque alone but also to non-signatories also provided the other conditions in the regard are satisfied. In other words, in a case of this nature it may not be permissible to draw a distinction between signatories and non-signatories and non-signatories qua the cheque in question. (Para 13)
On the basis of the above discussion, I feel that the present petitioners have been wrongly arraigned as a party, therefore, the petition is allowed and the complaint case hearing Nos. 705/2004 and 708/4/2004 in Crl. M.C. No. 2235/2007 and complaint case No. 62241/04 in Crl. M.C. No.1399/2008 filed by the respondent under Section 138 N.I. Act and proceedings arising therefrom are hereby quashed qua the petitioners. It is, however, made clear that this order shall have no affect as far as pendency of the said complaint cases are concerned as against the other respondents. (Para 15)
Result: Petition disposed off.
Kailash Gambhir, J.—By way of this common order bearing Cri. M.C. Nos. 2235/07 and 1399/08 filed by the petitioners under Section 482, Cr.P.C. seeking quashing of complaint case No.705/4/2004 and complaint case No. 708/4/2004 in Cri. M.C. No. 2235/07 and CC No. 6224/1/04 in Cri. M.C. No.1399/08 filed by the respondent under Section 138 of the Negotiable Instruments Act are being disposed off. The fundamental question raised by the petitioners in the present case is as to whether the petitioners, who are not the signatories of the dishonoured cheques, can be made to face criminal prosecution under Section 138 of the Negotiable Instruments Act simply on account of the fact that once the petitioner No. 2 was partner in M/s. Universal Engineering Co. on whose behalf one of their partner had issued the cheques in his individual and personal capacity and from his own saving Bank account. Before deciding the said question would be appropriate to give brief facts of the case as under:
The petitioner No. 2 viz. Mrs. Zulnar Haque and one Mr. P. Mohankrishnan started M/s. Universal Engineering Co. in the year of 1994 as their unregistered partnership concern, which was engaged in business of canvassing and booking orders on behalf of respondent/ complainant and stocking the Birla Yamaha Portable Generators which are manufactured by the respondent/complainant Company. The petitioner No.1 viz. M. Abdul Haque is the husband of petitioner No. 2 and he has nothing to do with the business and affairs of the M/s. Universal Engineering. Therefore, the petitioner No. 1 is nowhere connected with the activities of M/s. Universal Engineering and he is not at all connected for the trading and business of M/s. Universal Engineering. During the course of business certain dispute arose between the complainant and the petitioner No. 2 as well one Mr. P. Mohankrishnan with regard to the conduct of the business and also concerning some dues. The detailed business meetings were held on 12.2.1998 and 13.2.1998 between representatives of the respondent/complainant (Birla Yamaha Ltd.) with the partners of
M/s. Universal Engineering. In these meetings, the respondent complainant (Birla Yamaha Ltd.) herein was represented by Sh. Sandeep Kapoor DGM (Mktg.), Sh. Rakesh Sharma Senior Manager Accounts. Sh. G. Swaminathan, Sr. Manager Marketing Sh. K. Balamurugan, Area Sales Manager and Sh. K. Ramchandran, Senior Assistant Engineer. On the other hand M/s. Universal Engineering was represented by its both the partners Mr. P. Mohankrishnan and the 2nd petitioner viz. Mrs. Zulnar Haque. In these business meetings, the parties arrived at the conclusion that Mr. P. Mohankrishnan agreed to liquidate the outstanding of Rs. 9,82,765 and ready to make the payment in the form of cheques bearing Nos. 3326111 to 332620. Dhanalakshmi Bank, Coimbatore, Tamil Nadu and in case of any default, the complainant reserved their rights in taking immediate legal action for the recovery of the above from Mr. P. Mohankrishnan. True copy of the minutes of these meetings held on 12th and 13th February, 1998 was accepted and signed on 13.2.1998 by Sh. Sandeep Kapoor, DGM (Mktg.), Sh. Rakesh Senior Manager Marketing, Sh. K. Balamurugan Area Sales Manager and Sh. K. Ramachandran, Sr. Assistant Engineer on behalf of respondent/complainant. As per the minutes of the meeting dated 13.2.1998 and in order to discharge his own monetary obligation, Mr. P. Mohankrishnan, the partner of M/s. Universal Engineering in his individual capacity and liability issued cheque bearing No. 332617 dated 25.6.2001 of Rs. 4,00,000 (Rupees four lacs only), cheque No. 332618 dated 27.6.2001 of Rs. 5,00,000 (Rupees five lacs only), cheque No. 332619 dated 19.6.2001 of Rs. 2,50,000 (Rupees two lacs fifty thousand only) and cheque No. 332620 dated 30.6.2001 of Rs. 2,78,134 (Rupees two lacs seventy-eight thousand one hundred thirty-four only) from his personal account maintained by him i.e. in Dhanlakshmi Bank L
