Point of Law : Dishonoured of Cheque - Quash of Complaint - Offences committed by companies - Cheque has not been signed by petitioner and cheque has been issued with regard to business concern that is proprietorship concern of other accused, so petitioner cannot be made liable for commission of offence under section 138 of Act.

JUDGMENT :

1. The present petition has been filed by the petitioner under section 561-A Cr.P.C. (now 482 Cr.P.C.) for quashing the complaint filed against him under section 138 of the Negotiable Instruments Act, 1881 (for short the Act) as well as the order dated 31.03.2010 passed by the learned Sub Registrar, Jammu (hereinafter to be referred as the trial court) on the following grounds:

(i) That the petitioner has not issued the cheque in question and any liability arising out of the same cannot be fastened upon the petitioner.

(ii) That M/s Ultra Tuff Cement is a proprietorship concern of Mr. Deepak Savergi, that maintains the account with the Punjab National Bank, Durga Nagar, Jammu.

(iii) That at the time of inception of the business, complainant/respondent executed a rent agreement with M/s Ultra Tuff Cement through its proprietor, Mr. Deepak Savergi, in which it is clearly mentioned that M/s Ultra Tuff Cement is proprietorship concern and the petitioner has no role in the same.

(iv) That perusal of the complaint as well as the order dated 31.03.2010 reveals that nothing has been clearly established against the petitioner and the learned trial court too has not recorded any reason as to in what circumstances, the process has been issued against the petitioner.

2. Mr. Pranav Kohli, learned senior counsel representing the petitioner submitted that the petitioner has been unnecessarily arrayed as a party as the petitioner has not issued any cheque in favour of the complainant. In support of his submissions, Mr. Kohli has placed reliance on the judgments of the Supreme Court in S. M. S. Pharmaceuticals Ltd. v Neeta Bhalla, (2005) 8 SCC 89 and Raghu Lakshminarayan v Fine Tubes, (2007) AIR (SC) 1634 as also the judgment of this Court, titled, Neena Mahendru v/s M/s Pal Infrastructure Solutions, 2015(2) JKJ 51 (HC).

3. Mr. Sandeep Singh, learned counsel appearing for the respondent No. 1 submitted that the petitioner has committed an offence within the meaning of section 138 of the Act and the grounds raised in this petition are the disputed questions of facts, those cannot be looked into by this Court while exercising inherent power under section 561-A Cr.P.C (now 482).

4. Heard learned counsel for the parties and perused the record.

5. A perusal of the complaint reveals that in the complaint, ‘M/s Ultra Tuff Cement’ through its Managing Partner, Deepak Sawargi, has been arrayed as one of the accused and the petitioner and Goutam Kanodia have been shown as proprietors of M/s Ultra Tuff Cement. A perusal of the cheque also reveals that it bears stamp impression of “M/s Ultra Tuff Cement prop.” with signatures but not that of the petitioner. Further the petitioner has placed on record the certificate issued by the Bank concerned that the account on which the cheque was drawn is the proprietorship concern. The contesting respondent has not been able to dispute the said assertion and has not been able to demonstrate that the account in question belonged to partnership concern, with the petitioner as one of the partners. It is evident that the complainant himself is not sure as to whether M/s Ultra Tuff Cement is a proprietorship concern or the partnership concern. A business concern cannot be a proprietorship concern as well as partnership concern at the same time.

6. In order to fasten a liability under section 138 of the Act, the complaint can be filed against an individual or proprietorship concern only when the cheque has been issued by that individual/proprietor with regard to the account maintained by him, whereas in case of company, as per the mandate of section 141, every person, who at the time 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 company can be proceeded against for commission of above mentioned offence. The proprietorship concern does not fall within the definition of the company as per section 141 of the Act.

7. It is relevant to repr