Sarita Harish Kanchan vs Miss Riya Bawri

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2023 Supreme(Megh) 10

IN THE HIGH COURT OF MEGHALAYA AT SHILLONG
W. Diengdoh, J.
Smt. Sarita Harish Kanchan - Appellant
Versus
Miss Riya Bawri & 3 Ors. - Respondent
Crl.Petn. No. 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93 and 94 of 2021
Decided On : 14-03-2023

Important Points

Clear and specific averments are necessary in criminal complaints under N.I. Act to hold individuals vicariously liable; mere association with a firm or vague allegations are insufficient.

Subject

Criminal Law - Negotiable Instruments Act

Act Referred

CRIMINAL PROCEDURE CODE: S.482
INDIAN PENAL CODE: S.309, S.420, S.418, S.417, S.303, S.406, S.409, S.403
NEGOTIABLE INSTRUMENTS ACT: S.138, S.141, S.142
PARTNERSHIP ACT: S.32(3), S.72

Headnote

(A) Negotiable Instruments Act, 1881 - Sections 138, 141, 142 - Indian Penal Code - Sections 420, 418, 417, 403, 409, 406 - Criminal complaints regarding dishonour of cheques - The court quashed the summons and proceedings against the accused, ruling that there was no evidence linking them to the alleged offence or specific involvement in the partnership firm. The lack of specific averments in the complaints was noted, emphasizing the need for clear allegations to substantiatively attract criminal liability. (Paras 8, 12, 45, 54)

(B) Criminal Procedure Code - Section 482 - Inherent powers of High Court - The court assessed whether the inherent powers could be exercised to quash the proceedings based on the absence of a prima facie case and the potential abuse of the judicial process. (Paras 54, 53)

Advocates appeared:
Mr. A. Jebaraj, Advocate, Mr. A. H. Kharwanlang, Advocate, Ms. S. Agnihotri, Advocate, for the Appellant; Mr. S. Jindal, Advocate, (for R/1) Ms. I. Lyngwa, Advocate, (for R/2 & 3) Ms. S. Agnihotri, Advocate, (for R/4), for the Respondent.

Table of Content
1. filing of criminal complaints under n.i. act. (Para 1 , 2)
2. quashing related identical petitions. (Para 4 , 5)
3. petitioner argues non-involvement in the firm. (Para 6 , 7)
4. absence of evidence for alleged crimes against the petitioner. (Para 8 , 9 , 10)
5. vagueness in allegations and need for specificity. (Para 11 , 12)
6. guidelines on quashing petitions under section 482 cr.p.c. (Para 13 , 14)
7. claims of retirement and lack of responsibility. (Para 16 , 18)
8. responsibility under the n.i. act and vicarious liability considerations. (Para 19 , 20 , 21)
9. counterarguments by the respondent with case law. (Para 23 , 24)
10. presence of prima facie case in the context of inherent powers. (Para 32 , 34 , 35)
11. quashing of related complaints against the petitioners. (Para 36 , 54 , 55)

JUDGMENT

1. Several criminal complaint petitions identical and similar in nature were filed before the Court of the learned Additional Deputy Commissioner (Judicial) at Shillong. The complainant in all the said complaint petitions is the respondent No. 1 herein. Again, in all the complaint petitions the same set of accused persons were arrayed viz;

i) M/s Twelve Baskets (Registered Firm);

ii) Mr. Sachhidanand Kanchan;

iii) Mr. Mark Alexander Davidson; and

iv) Mrs. Sarita Harish Kanchan.

2. The complaint was made under Section 138 read with Sections 141 and 142 of the Negotiable Instruments Act, 1881 and also read with Sections 420 , 418, 417, 403, 409 and 406 IPC. The offences alleged is with regard to dishonour of cheques drawn on HDFC Bank, Kalapahar, Guwahati Branch by the respondent No. 2 Firm.

3. According to Annexure P-2 of criminal petition No. 38 of 2021 which is a copy of the order sheet reflecting the order dated 05.02.2020 passed by the learned Judicial Magistrate First Class, Shillong, it is seen that the learned Magistrate had perused the statement of the complainant/respondent No. 1 which was filed by way of an affidavit, whereupon the learned JMFC has taken cognizance of the case and had issued process to the said accused persons, including the petitioner herein.

4. Being highly aggrieved and dissatisfied with the proceedings of the said complaint case, the petitioners has accordingly approached this Court with a petition under Section 482 Cr.P.C with a prayer to quash the summons and other proceedings against the petitioners.

5. Since all the related petitions, as stated above are identical and similar in nature, therefore it is deemed convenient and expedient to dispose of the same by this common judgment and order.

6. In Crl.Petitions No. 35 to 56 of 2021, the petitioner's stand is that she is not at all involved in the partnership firm and therefore, could not have been proceeded against and in Crl.Petitions No. 74 to 94 of 2021, the stand of the petitioner therein is that although, he was a Director of the said partnership firm, he has since retired from the Firm at the time the alleged cheques were issued and dishonoured.

7. Mr. A. Jebaraj, learned counsel appearing for the petitioner in Crl.Petitions No. 35 to 56 of 2021 has submitted that the petitioner, Smti. Sarita Harish Kanchan is the sister-in-law of the respondent No. 3 and has never been associated with the respondent No. 2/accused No. 1 Firm at any point of time.

8. The petitioner not being involved in the affairs of the respondent No. 2 Firm, there is no evidence of commission of any alleged crime, even if the same is allegedly committed by the respondent No. 2 Firm. Since no cheque was drawn by the petitioner which was subsequently dishonoured, therefore no case under Section 138 of the Negotiable Instruments Act, 1881 can be made out.

9. Another contention of the petitioner is that Section 138 of the N.I. Act is not applicable as no demand was made from the petitioner in writing in accordance with the proviso to Section 138 , the notice issued by the respondent No. 1 being addressed only to the respondent No. 2 Firm.

10. Again, it is contended that the