2020 (3) TMI 245 - HC - Indian Laws

Dishonor of Cheque - Case of petitioner is that complaint is not maintainable under section 138 and 141 of NI Act as complainant is neither proprietor of M/s Sunlight Aerosol, New Delhi nor Shri Zile Singh is authorized person to file the complaint, nor complainant filed any document on record in support thereof - HELD THAT - Though the complaint is filed against company through petitioner being proprietor of the accused company, but fact remains that in a private limited company or limited company, there is no proprietorship. However, on this ground, the complaint cannot be rejected. With regard to notice under Section 251 Cr.P.C. which has not been framed against accused company and only against the petitioner who is an individual, there are force in the submission of learned counsel for petitioner that cheque in question is issued by him in the capacity of signatory of the company and not as an individual, however, without commenting much on the merits of the case, since compensation amount has already been paid and the fact that petitioner has already undergone 23 days in judicial custody, I hereby while maintaining the conviction, release the petitioner on sentence already undergone. Since the sentence awarded to the petitioner is less than two years and it is a first conviction against the petitioner, therefore, I hereby give him benefit of Section 12 of Probation of offenders Act. Thus, the petitioner shall not suffer disqualification, if any, attaching to the conviction for the above stated offence. Petition disposed off.

Summary

Issues:
Setting aside a judgment convicting the petitioner under section 138 of the Negotiable Instruments Act for dishonoring a cheque, maintainability of the complaint against the petitioner, failure to arraign the company as an accused, adequacy of evidence, and application of Section 12 of the Probation of Offenders Act.

Analysis:
The petitioner filed a revision petition under Section 397 of the Cr.P.C. challenging the judgment convicting him for dishonoring a cheque. The complainant alleged that the petitioner issued a cheque that was dishonored due to "Exceeds arrangements." The petitioner contended that the complaint was not maintainable under sections 138 and 141 of the NI Act as the complainant was not the proprietor of the firm mentioned, and no legal notice was issued to the drawer of the cheque. The petitioner also argued that the goods supplied were substandard, absolving him of criminal liability under section 138. The petitioner highlighted that the accused company was wound up during the criminal complaint. The petitioner's defense was that the trial court and appellate court failed to consider the evidence properly, leading to an unsustainable conviction.

The petitioner's counsel argued that the notice under Section 251 Cr.P.C. was only framed against the petitioner individually, not against the company. Citing legal precedents, the counsel emphasized that in the absence of the company being arraigned as an accused, a complaint against the petitioner alone was not maintainable. The counsel relied on cases where the courts ruled that the company must be named as an accused for a valid complaint. However, the complainant contended that the charges were not challenged, and the petitioner was convicted after trial, indicating no merit in the petitioner's case.

Despite the complaint being against the company through the petitioner as its proprietor, the court noted that in a limited company, there is no proprietorship. However, this ground alone was insufficient to reject the complaint. Considering the petitioner had already deposited the compensation amount and undergone 23 days in custody, the court maintained the conviction but released the petitioner on the sentence already served. Benefiting from Section 12 of the Probation of Offenders Act due to the sentence being less than two years and being a first conviction, the petitioner was relieved from any disqualification resulting from the conviction.

In conclusion, the court disposed of the petition, granting the petitioner relief under the Probation of Offenders Act and releasing him based on the time served.