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2012(3) LAW HERALD (P&H) 2301
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mrs. Justice Daya Chaudhary
Criminal Misc. No. M-20785 of 2010 (O&M)
Sameer Bharati
v.
State of Haryana & Anr.
{Decided on 02/07/2012}
(B) Negotiable Instruments Act, 1881, Ss.138 & 141-- Dishonour of Cheque--Offence by company--Quashing--Neither there is any specific averment in the complaint nor it has been proved from any document that the petitioner was responsible for day-to-day activities of the business of the company or that he was involved in any act against which the allegations were made in the complaint--The petitioner was not even Director at the time of issuance of the cheques as he has already resigned, as is clear from the resignation letter, which was submitted to the Company--Criminal Procedure Code, 1973, S.482. (Para 17)
(C) Negotiable Instruments Act, 1881, Ss.138 & 141--Dishonour of Cheque--Offence by company--Agreement entered between the parties clearly shows that there was a business transaction between the parties and cheques were given as security--Cheques which were to be replaced with the cheques already issued were also mentioned in the letter--Due to some unavoidable reasons, some of the cheques could not be cleared and subsequently, demand drafts were sent--No offence made out. (Para 8)
(D) Negotiable Instruments Act, 1881, Ss.138 & 141--Dishonour of Cheque--Offence by company--Summoning order has been passed without discussing anything and simply on the ground that a prima facie case is made out under Section 138 of the Act--Nowhere in the summoning order, it has been mentioned that the cheques were issued to discharge the legal liability or as a security--Summoning order set aside--Criminal Procedure Code, 1973 S.204. (Para 8)
Even in the complaint, no specific allegation has been attributed to the petitioner as to what was the role of the present petitioner or whether he was responsible for working of the company or was involved in any manner in dishonouring the cheques in dispute. Simply by stating that the petitioner was responsible, the summoning order has been passed in a mechanical manner without specifying any role towards the present petitioner. Nowhere from any document, it can be made out that the petitioner was authorized by the Directors of the Company to sign and issue cheques on behalf of the company. Neither the cheques have been signed by the petitioner nor it has come on record that the petitioner was involved in day-today activities of the business of the company.
Mrs. Daya Chaudhary, J.: - By this judgment of mine, nine petitions bearing Criminal Misc. No. M-20785 of 2010, Criminal Misc. No. M-20789 of 2010, Criminal Misc. No. M-26017 of 2010, Criminal Misc. No. M-20815 of 2010, Criminal Misc. No. M-20820 of 2010, Criminal Misc. No. M- 20988 of 2010, Criminal Misc. No. M-26023 of 2010, Criminal Misc. No. M-26264 of 2010, Criminal Misc. No. M-26536 of 2010 shall be disposed of. However, the facts are being taken from Criminal Misc. No. M-20785 of 2010.
2. The petitioner has filed this petition under Section 482 of the Code of Criminal Procedure for quashing of complaint No.757 dated 22.12.2007 filed under Sections 138/142 read with Section 141 of the Negotiable Instruments Act, 1881 (for short “the Act”) as well as the summoning order dated 22.12.2007 and other proceedings arising therefrom.
3. As per case of the petitioner, he was working as Additional Director in the company of the respondent and was not whole time director and has falsely been implicated in the case. The petitioner was neither the partner nor signatory of the cheques in dispute and was not involved for the day-to-day affairs of the company. He was working under the control of Board of Company constituted by the Chairman of the Company, who is sole Incharge of the company. The petitioner resigned from the job of Director on 31.08.2008. He never issued any cheque to any of the party including respondent No.2 without permission or approval of the Board of Directors. The talk of compromise was there between the parties and because of that reason learned Additional Sessions Judge, Faridabad, adjourned the case. A statement in this regard was also made before Lok Adalat on 20.12.2008 and it was agreed to make payment of outstanding amount of Rs.1,00,55,000/- to the complainantrespondent No.2. The cheques in dispute were never issued to discharge the legal liabilities but it was issued as a security and subsequently, it was replaced with new cheques.
4. While issuing notice of motion on 22.07.2010, following contention of learned counsel for the petitioner was recorded: -
“ It was stated by the learned counsel for the petitioner that vide his letter dated 24.10.2007, the petitioner had duly informed the complainant that he was issuing a draft in lieu of the dishonoured cheques and that the cheques be returned to him. The complainant encashed the draft but did not return the said cheques. Instead, filed the present complaint.
xxx xxx xxx”
5. Learned counsel for the petitioner submits that the petitioner has falsely been implicated in the complaint case and summoning order has been passed in a mechanical manner. The petitioner was neither the Director of the Company nor has signed the cheques in dispute. Learned counsel further submits that the petitioner has written some of the letters to the complainantrespondent No.2 on behalf of the Company but has no concern with the company, therefore, he cannot be held responsible. Learned counsel also submits that the petitioner was not the Director of the Company when the cheques in question were issued and there is no specific averment in the complaint with regard to the role of the present petitioner. Learned counsel also submits that the Court at Faridabad has no jurisdiction to try and entertain the complaint and to summon the petitioner in any manner as the parties are residing at Panaji and cheques were presented for collection in the Bank of Margaon. Learned counsel for the petitioner also relies upon the judgments of Hon’ble Supreme Court in S.M.S. Pharmaceuticals Ltd. vs. Neeta Bhalla and another, (2005) 8 Supreme Court Cases 89; Sabitha Ramamurthy and another vs, R.B.S. Channabasavaradhya, (2006) 10 Supreme Court Cases 581; Saroj Kumar Poddar vs. State (NCT of Delhi) and another, [2007(1) Law Herald (SC) 273] : (2007) 3 Supreme Court Cases 693; N.K. Wahi vs. Shekhar Singh and others, [2007(2) Law Herald (SC) 982] : (2007) 9 Supreme Court Cases 481; National Small I
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