2022 (9) TMI 381 - HC - Indian Laws

Dishonor of Cheque - insufficient funds - whether cheque was issued for security purpose? - non-impleading the AMD Housing Developer as an accused - vicarious liability u/s 141 of NI Act - HELD THAT - It has to be noted that the petitioner had not raised the question of law that the prosecution of the petitioner as a partner without implicating the partnership firm is not maintainable, without making the firm as an accused in his affidavit. There is no dispute with regard to the legal principles of the Hon'ble Supreme Court that for maintaining a prosecution under Section 141 of Negotiable Instruments Act, arraigning of a company as an accused is imperative only within the other categories of offenders can be brought in the dragnet on the touchstone of vicarious liability as the same has been stipulated in the provision itself. In the present case, the complainant and the petitioner disputed the fact whether the petitioner borrowed the loan amount for AMD Housing Developer or for petitioner's personal capacity and also, the petitioner disputed the fact that by himself, the disputed cheque was given as a security purpose only and the same was misused by the complainant. Therefore, whether the disputed cheque was given as security or not, whether the petitioner borrowed the loan amount for his personal purpose or for the benefit of AMD Housing Developers are the question of facts, which could have been determined only by the trial Court, after recording evidences of the parties. The criminal proceedings cannot be quashed - Petition dismissed.

Summary

Issues:
Challenge to criminal proceedings under Section 138 of Negotiable Instruments Act, 1881 - Maintainability of complaint against petitioner as an individual - Dispute over loan purpose - Impleading partnership firm as an accused.

Analysis:

1. Challenge to Criminal Proceedings:
The petitioner sought to quash the proceedings in S.T.C.No. 498 of 2021, arguing that the complaint against him was not maintainable as the loan amount was not paid to him in his individual capacity. The petitioner contended that the complaint was filed through the complainant firm's power of attorney, who lacked the competence to speak on the transaction. The petitioner asserted that he gave the cheque for security purposes, which was allegedly misused by the complainant. The petitioner, being a partner in a firm, argued that the firm should have been implicated as an accused. The court noted the legal precedents cited by the petitioner but emphasized that the determination of facts regarding the loan purpose and cheque issuance should be done during trial.

2. Dispute Over Loan Purpose:
The respondent contended that the petitioner borrowed the loan in his personal capacity, not as a partner in a firm. The respondent highlighted that the petitioner did not object to the non-impleading of the firm in his reply notice and did not deny borrowing the personal loan. The respondent proposed to implead the partnership firm later in the proceedings. The court noted the conflicting claims regarding the loan purpose and emphasized that such factual disputes should be resolved through trial proceedings rather than quashing the criminal case prematurely.

3. Impleading Partnership Firm:
The petitioner argued that the partnership firm should have been made an accused in the complaint. However, the court observed that the question of whether the loan was borrowed for the benefit of the firm or the petitioner's personal use needed further examination based on evidence. The court reiterated the necessity of determining factual issues during trial and declined to quash the criminal proceedings before the commencement of trial.

4. Legal Principles and Precedents:
The court referred to legal principles established by the Hon'ble Supreme Court regarding the arraignment of companies as accused under Section 141 of the Negotiable Instruments Act. The court emphasized the importance of factual determinations in cases involving disputed loan purposes and cheque issuances, stating that such issues should be resolved through trial proceedings.

5. Conclusion:
In light of the conflicting claims and factual disputes regarding the loan purpose and cheque issuance, the court dismissed the criminal original petition, stating that the parameters set by legal precedents required the resolution of factual issues during trial. The court emphasized that premature quashing of criminal proceedings was not warranted and allowed for the determination of facts through trial proceedings.

This detailed analysis of the judgment highlights the key issues involved, the arguments presented by both parties, the legal principles applied by the court, and the ultimate decision rendered by the court.