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2011 Supreme(Raj) 850
[Citation : 2011(4) RLW 3456 (Raj.)]
(Rajasthan High Court)
Jaipur Bench
Rajeev Gupta & Anr. Vs. State of Rajasthan & Ors. (Agarwal, J.)
HON'BLE PRASHANT KUMAR AGARWAL, J.
Rajeev Gupta & Anr.
Versus
State of Rajasthan & Ors.
S.B. Criminal Misc. Petition Nos. 1988 of 2010 & 324 of 2011,
decided on 25.08.2011
Sonia Shandilya and Sandeep Pathak, for Petitioners;
Amit Poonia, P.P., for State;
R.P. Garg, for Respondent-Complainant
Headnote:Negotiable Instrument Act, 1881, Sec. 138, 141 — Liability of Directors — Dishonour of cheque — The cheque was not issued by the Directors — Petitioner resigned from Directorships way back in the year 2002 — Trial Court took cognizance on 29.3.2010 for dishonour of cheque dated 3.11.2008 — Held — The company consisted father who issued cheque and his three sons as Directors — All the Directors including petitioners are discharging business of the Company — At the time of issuing of the cheque all of them were responsible to company and they are jointly and severally liable to make the payment of the cheque amount — No evidence revealing that their resignations were accepted —It is not a legal requirement that all the words used in Sec. 141 are to be reproduced in the complaint — Adequate evidence on record to proceed in the case. (Paras 9 to 11)
Petition dismissed.
ijØkE; fy[kr vf/kfu;e] 1881] /kkjk 138] 141 & funs'kdksa dk nkf;Ro & pSd vuknj.k & pSd funs'kdksa }kjk tkjh ugha fd;k x;k Fkk & izkFkhZx.k us funsZ'kd in ls o"kZ 2002 esa gh R;kx i= ns fn;k Fkk & fopkj.k U;k;ky; us pSd fnukafdr 3-11-2008 ds vuknj.k gsrq fnukad 29-3-2010 dks laKku fy;k & vfHkfu/kkZfjr & dEiuh esa firk] ftlus pSd tkjh fd;k] rFkk mlds rhu iq= funs'kd ds :i esa lfEefyr Fks & lHkh funs'kdx.k] ftlesa izkFkhZx.k Hkh lfEefyr gS] dEiuh ds dk;Z dk lEiknu dj jgs gS & pSd tkjh djrs le; os lHkh dEiuh ds izfr ftEesnkj Fks vr% os pSd dh jkf'k dk Hkqxrku djus gsrq la;qDrr% ,oa i`Fkdr% nk;h gS & ;g n'kkZus okyk dksbZ lk{; ugha fd muds R;kx i= Lohdkj fd;s x;s & ;g dksbZ fof/kd okaNuh;rk ugha fd /kkjk 141 esa iz;qDr lHkh 'kCnksa dks ifjokn esa nksgjk;k tkos & bl ekeys esa dk;Zokgh djus gsrq vfHkys[k ij i;kZIr lk{; ekStwn gSA ¼in la[;k 9 ls 11½
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2. The brief relevant facts for the disposal of these petitions are that the non-petitioner-complainant-M/s. Singhal Builders through its partner Shri Kapoor Chand Singhal filed a complaint for offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter to be referred as "the Act") against M/s. Satya Prakash & Brothers Pvt. Ltd. Company and its four Directors Shri Satya Prakash, Shri Ghanshyam, Shri Rajeev Gupta and Shri Sanjay Gupta with the averment that the complainant-non-petitioner undertook some road construction work on behalf of the company and for the repayment of outstanding amount Shri Satya Prakash on behalf of the company issued a cheque dated 3.11.2008 for an amount of Rs. 1,67,91,093 and when the complainant presented that cheque for payment in the Bank of Baroda, Nai Mandi, Bharatpur, it was returned un-paid with an endorsement that the account holder has stopped the payment of the cheque. It was also averred in the complaint that the non-petitioner-complainant served a legal notice asking the company and its Directors to make payment of the cheque amount but the demand made by the complainant was not honoured. It was also averred in the complaint that M/s. Satya Prakash & Brothers Pvt. Ltd. company is a registered company and Shri Satya Prakash, Shri Ghanshyam, Shri Rajeev Gupta and Shri Sanjay Gupta are its Directors and they were responsible for the business of the company at the time when the disputed cheque was issued and they are also jointly and severally liable to make payment of the cheque amount.
3. In support of the complaint, statement of Shri Kapoor Gland Singhal was recorded under Section 200 Cr.P.C. and statement of his witness Shri Om Prakash was recorded under Section 202 Cr.P.C. and the learned trial court i.e. Chief Judicial Magistrate Bharatpur by order dated 29.03.2010 took cognizance against the company as well as all four Directors and ordered that they may be summoned as accused. Feeling aggrieved with the order of cognizance, petitioners of Criminal Misc. Petition No. 1988/2010 Shri Rajeev Gupta and Shri Sanjay Gupta assailed the order by way of Criminal Revision Petition No.84/2010 but without success and the learned revisional court i.e. Additional Sessions Judge No. 2, Bharatpur vide order dated 13.8.2010 dismissed the revision petition filed by the petitioners Shri Rajeev Gupta and Shri Sanjay Gupta. Still dissatisfied they are, by way of Criminal Misc. Petition No. 1988/2010, before this Court with the prayer that both the orders may be quashed and set aside.
The petitioner of Criminal Misc. Petition No.325/2011 Shri Ghanshyam has filed this petition assailing the order dated 29.03.2010 with a prayer that the order of cognizance may be set aside and the proceedings for offence under Section 138 of the Act pending before the trial court i.e. Additional Chief Judicial Magistrate No.1, Bharatpur in Criminal Case No. 170/2009 may be quashed.
4. Assailing the impugned orders, the learned counsel for the petitioners has raised the following submissions:
(i) According to Section 141 of the Act there should be specific allegation and averment against the Directors of the company that they were responsible and were also incharge of the Company at the time when the cheque in dispute was issued, but in the present case no such averment has been made in the complaint as well as in the statements recorded under Section 200 and 202 Cr.P.C. Merely because the petitioners are or have been the Directors of the Company they were not in any way responsible for issuing of cheque in dispute and they were not liable to make payment. When the cheque in dispute is not issued by the petitioners, they cannot be prosecuted under Section 138 of the Act.
(ii) In the present case
