The provisions of section 141 of the Negotiable Instrument Act make persons in charge of a company's business vicariously liable for offences committed by the company. The complaint must establish the association of the accused with the company or firm to hold them liable.

ORDER : – The present petition under section 482 of Criminal Procedure Code has been filed seeking quashment of the cognizance order dated 14-11-2019 and further proceedings pending before Judicial Magistrate, First Class, Gwalior (M. P.) in case No. 2592/2019 (Private Complaint), arising out of private complaint made under section 138 of Negotiable Instrument Act, 1981.

2. The necessary facts for disposal of the present petition in short are that the petitioner is an accused under the proceedings initiated under section 138 of Negotiable Instrument Act pending in the Court of Judicial Magistrate, First Class, Gwalior (M. P.). As per the case of the complainant, a loan of Rs. 11 lakhs has been taken in November, 2018 by the petitioner from the respondent/ complainant. When the respondent/complainant asked to return of amount of Rs. 11 lakhs, then the petitioner/accused provided Rs. 11 lakh through Shri Rajendra Shukla s/o Shri Rameshwar Das Shukla to the complainant on 25-3-2019. After passing of two months, the respondent/complainant asked to return the money from the petitioner/accused, then the petitioner/accused gave of cheque of State of Bank of India, Branch A.D.B. Joura, District Morena bearing cheque No. 909210 of account No. 34170258215 for Rs. 11 lakh on 15-9-2019. When the aforesaid cheque was presented by the respondent/complainant in his bank account with HDFC Bank Ltd., Branch Bahodapur on 15-9-2019 and by the memorandum of the bank dated 23-9-2019 bank informed to the respondent/complainant that the cheque has been dishonoured on account of “Insufficient Balance”. Thereafter, as per the requirement of section 138 of Negotiable Instrument Act, the above complaint has been filed before the competent Court of jurisdiction. After service of notice, the learned Magistrate took the cognizance and issued summons against the petitioner/accused by impugned order.

3. Learned counsel for the petitioner argued that the impugned order is perverse, illegal and against the settled principles of law because the cheque in dispute has been issued in the name of firm, but the case has been filed against the petitioner in the individual capacity, which cannot fulfill the requirement as contemplated under section 141 of Negotiable Instrument Act, 1881 and does not constitute any offence.

4. In support of his submission counsel for the petitioner has relied upon the law laid down by the Hon’ble Supreme Court in the case of Anita Hada vs. M/s Godfather Travels and Tours Pvt. Ltd., reported in (2012) 5 SCC 661 and argued that the cheque which has been issued by the firm cannot constitute any offence against the petitioner in an individual capacity, hence, the order of cognizance and further proceedings of learned trial Court is absolutely bad in law and deserves to be quashed.

5. Heard.

6. For ready reference and convenience, the provisions of section 141 of Negotiable Instrument Act, 1881 are reproduced below;

141. Offences by companies. – (1) If the person committing an offence under section 138 is a company, every person who, at the time the 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 the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence: Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter. (2) Notwithstanding anything contained in sub-