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2004 Supreme(MP) 835
Subhash Samvatsar, J.
Janak Gandhi v. State of M.P.
Miscellaneous Criminal Case No. 3914 of 2004 (G); Decided on 3.11.2004.
Ankur Mody and Vijay Sunderam for applicant; T.C. Singhal for respondent No. 1.
Headnote:(1) Negotiable Instruments Act, 1881 -- Ss. 138 and 141 -- offence under S. 138 committed by company -- Managing Director of company responsible for business of company is liable for the offence.
(2) Negotiable Instruments Act, 1881 -- Ss. 94 and 138 -- offence under S. 138 -- mode of notice of demand is provided under S. 94 -- it does not provide that notice must be given by registered post -- notice addressed on correct address -- presumption of service can be drawn -otherwise also this fact can be decided after evidence is recorded.
(3) Precedent -- relevent provision not considered -- order/judgment is per incuriam.
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¼2½ ijdzkE; fy[kr vf/kfu;e] 1881 && /kkjk 94 rFkk 138 && /kkjk 138 ds v/khu vijk/k && ek¡x dh lwpuk dk <ax /kkjk 94 ds v/khu micaf/kr gS && ;g micaf/kr ugha fd lwpuk jftLVªhd`r Mkd ls nh tkuk pkf,g && lpuk lgh irs ij lacksf/kr && rkehy dh mi/kkj.kk dh tk ldrh gS && vU;Fkk Hkh ;g rF; lk{; vfHkfyf[kr djus ds i‘pkr~ fofuf‘pr fd;k tk ldrk gSA
¼3½ iwoZ fu.kZ; && lqlaxr mica/k fopkj esa ugha fy;k x;k && vkns‘k@fu.kZ; vuo/kkurk ds dkj.k gSA
Disposal of this petition shall also govern the disposal of connected case, Miscellaneous Criminal Case No. 3915 of 2004, Janak Gandhi v. Mohan Mandelia and two others.
The brief facts of the case are that the present petitioner, who is Managing Director of a company, namely, M/s. G.T.G. Global Finance Company Ltd., has filed the present petition under section 482 CrPC challenging an order dated 3. 8.2004 passed in case No. 900/2004 whereby cognizance is taken against the present petitioner and other accused for committing offence under section 138 of the Negotiable instruments Act.
The brief facts of the case are that the respondent No. 1 filed a complaint under section 138 of the Negotiable instruments Act on 11.6.2004 against the present petitioner and other co-accused. It is alleged that respondent No.1, the Company is owner of G.N.T. Television. It is further alleged that there was an agreement between respondent No.1 and respondents No.2 and 3 and the petitioner for carrying on cable television network in the city of Gwalior. The present petitioner carries on business of cable television network at Indore. A memorandum of undertaking was also entered into between the parties. As per the said agreement respondent No. 1 invested Rs. 42.46 lakhs while the petitioner invested Rs. 17.03 lakhs in the said business. There was some dispute between the parties and it was agreed upon that a sum of Rs. 31.96 lakhs will be paid to the petitioner by respondent No.1. Towards this payment a cheque for Rs. 20 lakhs bearing Cheque No. 532357 dated 16.3.2004 was issued against State Bank of India, Branch Guna, was delivered to respondent No. 1. The said cheque was deposited for collection by respondent No.1 in his bank account. The said cheque was returned on 2.5.2004 with a memo of insufficient fund. Respondent No. 1 alleged that a notice dated 9.5.2004 was issued to the petitioner and respondents No.2 and 3 about the dishonour of the cheque and a demand was raised for the said amount. Thereafter, a complaint under section 138 of the Negotiable Instruments Act was filed. The Court below took cognizance of the said offence.
Hence, this petition.
The main contention raised by the counsel for the petitioner is that as per the allegations made in the complaint the offence under section 138 of the Negotiable Instruments Act is not made out and, therefore, the said proceedings should be quashed as even if the allegations in the complaint are taken to be true the present petitioner cannot be convicted for committing the said offence. The second contention raised by the counsel for the petitioner is that the cheque is not signed by him but it is signed by respondent No. 3 on behalf of respondent No.2. Counsel for the petitioner submits that as he has not signed the cheque he is not liable to be prosecuted for committing the said offence. From the perusal of cheque it appears that the cheque is issued on behalf of respondent No.2 M/s. O.T.G. Global Finance Company Ltd. Present petitioner is Managing Director of the said Company. The contention raised by the counsel for the petitioner is that complainant has no where averred in his complaint that the present petitioner is responsible for the payment of the said amount.
Counsel for the petitioner relied upon the case of Katta Sujatha (Smt.) v. Fertilizers & Chemicals Travancore Ltd. and another (2002) 7 SCC 655. That case is clearly distinguishable. In that case complaint was filed against all the persons of the firm without making any allegation that accused in that case was responsible for business of the firm. But in the present case the situation is different. The petitioner is a Managing Director in the Company and from the documents particularly, the agreement between the parties it is clear that he is responsible for carrying out the conduct of the company.
Section 141 of the Negotiable Instruments Act provides that if a cheque is issued on behalf of a c
