Back
2011 Supreme(Chh) 369
IN THE HIGH COURT OF CHHATTISGARH, BILASPUR
Manindramohan Srivastava, J.
M/s.Anil Rice Mill & Ors. - Petitioners
Versus
State of Chhattisgarh & Anr. - Respondents
M.Cr.C.No.2775 of 2004 with M.Cr.C.No. 137 of 2005
Decided On : 16-12-2011
For the Petitioners:Fouzia Mirza, Advocate
For the Respondent:Rakesh Jha, DGA, G.D. Vaswani, Advocate
The main legal point established in the judgment is that for partners of a firm to be held liable under Section 138 of the Negotiable Instruments Act, 1881, the complaints must contain specific averments demonstrating their responsibility for the conduct of the firm's business at the time of the alleged offence, and clear and unambiguous allegations supporting vicarious liability.
Headnote:
Section 138 - Negotiable Instruments Act, 1881 - 138(C)
Fact of the Case:
The respondent filed complaints against the petitioners alleging offences under Section 138 of the Negotiable Instruments Act, 1881. The complaints stated that the petitioners issued cheques that were dishonored due to insufficient funds, and failed to make the required payments within 15 days of receiving demand notices.
Finding of the Court:
The court found that the complaints did not fulfill the essential requirements for commission of the offence under Section 138 of the Act of 1881. It noted that the complaints lacked specific averments to establish that the partners, other than the ones who issued the cheques, were in charge and responsible for the conduct of the business of the firm. The court also found that the complaints did not provide sufficient evidence to support the allegations of deliberate non-receipt of demand notices and non-payment within the stipulated period.
Issues: The issues revolved around the sufficiency of the complaints in establishing the essential requirements for commission of the offence under Section 138 of the Act of 1881, including the lack of specific averments regarding the partners' responsibility for the conduct of the business and the absence of evidence supporting deliberate non-receipt of demand notices and non-payment within the stipulated period.
Ratio Decidendi: The court emphasized that for partners of a firm to be proceeded against under Section 138 of the Act of 1881, the complaints must contain specific averments demonstrating that the partners were in charge and responsible for the conduct of the business of the firm at the time of the alleged offence. The court also highlighted the need for clear and unambiguous allegations to support vicarious liability under Section 138.
Final Decision: The court partly allowed the petitions, setting aside the orders taking cognizance against certain petitioners and quashing the complaints against them, while allowing the complaints to proceed against the firm and specific individuals.
ORDER
Manindra Mohan Shrivastava, J.
The aforesaid two petitions under Section 482 of the Criminal Procedure Code are being disposed of by a common order as most of the grounds raised in both the cases between the same parties in respect of dishonour of two different cheques, are common on facts as well as on law.
M.CR.C.NO.2775 OF 2004
2. The respondent No.2 filed a complaint against the petitioner alleging commission of offence under Section 138 of the Negotiable Instruments Act, 1881 (In short "the Act of 1881") that Ramlal, Sharad and Anil had taken an amount of Rs. 2 Lakh stating it to he needed for petitioner No.1 Firm on 19.07.2001 on an assurance to return the same by 18.08.2001. It was further averred in the complaint that towards discharge of liability of repayment of loan, Ramlal gave a cheque signed by him bearing seal of petitioner No.1 firm on 18.08.2001 for an amount of Rs .2 Lakh at Raipur, which was submitted for encashment of the amount under the cheque by the complainant in its account maintained in the District Co-operative Central Bank, Raipur. Vide memo dated 22.08 2001 of the Bank, the complainant came to know on 23.08.2011 that the cheque issued by the petitioner No.1 Firm and Ramlal was dishonoured due to insufficient fund. Thereafter, the complainant sent a registered notice of demand on 27.08.2001 to the Firm and Ramlal demanding payment of the amount under the cheque within a period of 15 days. Further averment in the complaint is that the information with regard to envelop containing notice was given by the Postman on 28.08.2001 to the accused persons, but they did not accept the notice, upon which, the Postman endorsed on (15.09.2001 that the notice was not taken, and the same was returned. It was alleged that even after giving demand notice, no payment was made within a period of 15 days, and thereby, offence under Section 138 of the Act of 1881 was committed. Preliminary statement of the complainant was recorded and the learned Magistrate registered offence against the petitioners. An application under Section 245(2) of the Criminal Procedure Code was filed claiming discharge on the submission that the petitioner No.4 Anil Kumar Agrawal was not the Partner of the Firm. The application was however rejected on 12.09.2002. Aggrieved by the rejection order, revision petition was filed, which too has been dismissed vide impugned order dated 24.08.2004.
M.CR.C.NO.137 OF 2005
3. The respondent No.2 filed a complaint against the petitioners No. 1 to 3 alleging commission of offence under Section 138 of the Act of 1881. In the complaint, it has been averred that Ramlal, Sharad and Anil Kumar Agrawal obtained a loan of Rs. 3 Lakh for the need of the petitioner No. 1 Firm on 18.07.2001. It has been averred that towards discharge of the aforesaid loan, Sharad Agrawal issued a cheque under signature and seal of the Firm for an amount of Rs. 3 lakh on 08.08.2001 and gave it to the complainant on that day at Raipur, and when the cheque was submitted for encashment of the amount under the cheque in the complainant's account with his banker, vide memo dated 09.08.2001, the complainant was informed that the said cheque is dishonoured due to insufficient fund. Thereafter, counsel of the complainant sent a demand notice through registered post to the petitioners No. 1 to 3 and informing dishonour of the cheque and demand for payment of the amount under the cheque within 15 days. On 13.08.2001, the Postman informed regarding the envelop containing notice to the petitioners/accused, but they did not take the notice, where after the Postman returned the same on 20.08.2001. It is averred in the complaint that the petitioners/accused deliberately did not take the notice nor paid the amount within a period of 15 days, despite demand made, and thereby committed offence under Section 138 of the Act of 1881. After recording preliminary statement of the complainant, the learned Magistrate registered the offence under Sec
