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2022 Supreme(Gau) 675
IN THE HIGH COURT OF GAUHATI, (ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Robin Phukan, J.
Sandeep Jaiswal And Anr. – Petitioners
Versus
M/s. Perfect Paper Converter and Anr. – Respondents
Crl. Pet. No.25 of 2020
Decided On : 16-09-2022
For the Petitioner: Mr. B. Deka
For the Respondent: P.P., Assam.
Point of Law : 58. Commission of offence by company is an express condition precedent to attract the vicarious liability of others.
Headnote:
Criminal Procedure Code, 1973 - Section 482 – Negotiable instrument act - Section 138 and 141 - Company - Cheque dishonoured -- M/s. Perfect Paper Converter, represented by its proprietor , lodged a complaint under Section 138 of N.I. Act before learned CJM, Kamrup (M) to effect that accused is a firm/company in name and style M/s. Jaiswal Agency, represented by its proprietors namely, had purchased goods from the firm of complainant on credit for a sum of Rs.61,356/-. In order to discharge the aforesaid liability, M/s. Jaiswal Agency issued a cheque bearing No., dated for a sum of Rs.61,356/- drawn in the State Bank of India, situated at Zoo Road, Guwahati, against its account No.5020026622794 - Complainant has deposited cheque with his banker i.e. HDFC Bank for collecting the same - But, said cheque returned unpaid by Banker with an endorsement to effect that "fund insufficient", vide Bank memo dated
Finding of Court : Court have also carefully gone through the decision referred by Mr. Gupta, learned counsel for respondent and I find that ratio laid down in aforesaid cases has to be treated to be restricted to its own facts and therefore, it would not come into aid of respondent No.1 - Since M/s. Jaiswal Agency has not been made an accused here in this case and since no legal notice has been issued to it, complaint under Section 138 of N.I. Act cannot be maintained against present petitioners, without invoking provision of Section 141 of N.I. Act and as such complaint lodged before Court of learned CJM, Kamrup (M) at Guwahati is nothing but an abuse of process of Court and taking cognizance vide impugned order dated suffers from manifest illegality and thus, failed to withstand test of legality and propriety.
Result : Petition and accordingly stands allowed.
JUDGMENT :
1. Heard Mr. B. Deka, learned counsel appearing for the petitioners. Also heard Mr. H. Gupta, learned counsel appearing for the respondent No.1.
2. In this petition under Section 482 of the CrPC, petitioner No.1 Sri Sandeep Jaiswal and petitioner No.2 Smti Mausumi Mishra have prayed for quashing of the order dated 11.09.2019, passed by the learned Judicial Magistrate, 1st Class, Kamrup (M) at Guwahati in Complaint Case No.3041C/2019. It is to be mentioned here that vide the impugned order, the learned Court below has taken cognizance upon the complaint lodged by the respondent M/s. Perfect Paper Converter, represented by its proprietor Shri Amit Kumar Vyas, under Section 138 of the N.I. Act and issued process against present petitioners.
3. The factual background leading to filing of the present petition is briefly stated as under:
“On 06.08.2019, M/s. Perfect Paper Converter, represented by its proprietor Amit Kumar Vyas, lodged a complaint under Section 138 of the N.I. Act before the learned CJM, Kamrup (M) at Guwahati to the effect that the accused is a firm/company in the name and style M/s. Jaiswal Agency, represented by its proprietors namely, Sri Sandeep Jaiswal and Smti Mausumi Mishra had purchased goods from the firm of the complainant on credit for a sum of Rs.61,356/-. In order to discharge the aforesaid liability, M/s. Jaiswal Agency issued a cheque bearing No.315235, dated 13.05.2019, for a sum of Rs.61,356/-drawn in the State Bank of India, situated at Zoo Road, Guwahati, against its account No.5020026622794. Thereafter, the complainant has deposited the cheque with his banker i.e. HDFC Bank for collecting the same. But, the said cheque returned unpaid by the Banker with an endorsement to the effect that “fund insufficient”, vide Bank memo dated 15.05.2019. Thereafter the respondent had issued notice demanding payment of the aforesaid amount, under Section 138 of the N.I. Act, by registered post through its Advocate, on 13.06.2019. But, the accused had failed to make payment of the aforesaid amount in spite of receipt of the legal notice. Thereafter the respondent approached the Court of learned CJM, Kamrup (M) at Guwahati, by filing the complaint under Section 138 of the N.I. Act. Upon the said complaint, the learned Court below has taken cognizance and issued process to the petitioners.
4. Being highly aggrieved, the petitioners approached this Court for quashing and setting aside the complaint and the order of taking cognizance on the ground that the cheque was issued in the name of M/s. Jaiswal Agency, but said Agency has not been made and accused and no notice was issued to it and having not invoked the provision of Section 141 of the N.I. Act, the petitioners cannot be made as accused.
5. Mr. B. Deka, learned counsel for the petitioner submits that as per averment made in the para 2 of the complaint, accused M/s. Jaiswal Agency is a firm/company, represented by its proprietor namely, Sri Sandeep Jaiswal and Smti Mausumi Mishra, but said firm/ company has not been arrayed in the complaint as an accused and no statutory notice was also issued to the firm/company M/s. Jaiswal Agency. Mr. Deka further submits that having not invoked Section 141 of the N.I. Act, the respondent cannot array the petitioners as accused here in this case and that in view of Section 141 of the N.I. Act, deeming fiction is created and the functionaries and the companions are made liable. Mr. Deka also submits that in view of the proviso to Section 138 of the N.I. Act and as per Clause ‘B’, the drawer of the cheque is M/s. Jaiswal Agency and the petitioners are only the representatives.
6. Mr. Deka further submits that no offence under Section 138 of the N.I. Act is made out against the petitioners and as such the complaint lodged before the learned CJM, Kamrup (M) at Guwahati is an abuse of the process of the Court and that the legal notice, issued to the petitioners, is contrary to the complaint and therefore, it is conte
