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TMI Blog2017 (12) TMI 556X X X X Extracts X X X X X X X X Extracts X X X X ..... sidering the evidence which would ultimately come on record, therefore, at this stage it is held that there is sufficient allegation in the complaint to proceed against the applicant under Section 138 of Negotiable Instruments Act. It is an undisputed fact that the Trial has reached to an advanced stage and the case is fixed for recording of accused statement. Even otherwise, on that ground also, the application under Section 482 of Cr.P.C. is liable to be dismissed. Thus, this Court is of the considered opinion that the Trial Court did not commit any mistake in taking cognizance of the offence under Section 138 of Negotiable Instruments Act, - M. Cr. C. No. 7726/2017 - - - Dated:- 16-11-2017 - G. S. Ahluwalia, J. Shri Ankit Saxena, Counsel for applicant Shri Manish Datt, Senior Counsel with Shri T.P. Jaiswal, Counsel for respondent ORDER Heard. This application under Section 482 of Cr.P.C. has been filed for quashing the order dated 23-9-2016 by which cognizance of offence under Section 138 of Negotiable Instruments Act was taken as well as further proceedings pending in the Court of C.J.M. Betul in Criminal Case No. SC NIA/2301039/2016. The necessar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of insufficiency of funds. A statutory notice under Section 138 of Negotiable Instruments Act was issued on 27/6/2016, which was received by the accused persons on 1/7/2016 and 4/7/2016, but inspite of that, neither the accused persons gave any reply nor they made the payment of the cheque amount. Accordingly, a complaint under Section 138 of Negotiable Instruments Act and Section 420 of IPC was filed. By order dated 22/7/2016, the trial Court took cognizance of the offence under Section 138 of Negotiable Instruments Act and issued summons to the accused persons. It is contended by the counsel for the applicant that in order to make the applicant vicariously liable there has to be a specific allegation to the effect that she is responsible and in-charge of day-to-day business of the Company. From the complaint itself, it is clear that the cheques issued by accused no.2 Harish on the earlier occasion were returned back by the bank as the same had stood bounced and thereafter accused no.2 Harish bagla had issued fresh cheques. Since the fresh cheques were issued, therefore, there should have been specific averment in the complaint to the effect that even on the date of issuance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the signatures of accused no.2 Harish Bagla had stood bounced and therefore, the issuance of second set of cheques may also amount to acknowledgment in writing. It is further submitted that in para 2 of the complaint there is a specific averment to the effect that the applicant and accused no.2 are doing the day-to-day business of accused no.1 M/s Amrit Feeds Limited. and the applicant is responsible and in-charge of day to day business of the accused No. 1 M/s Amrit Feeds Limited. It is further submitted that the case has reached to an advanced stage and it is fixed for recording of accused statement under Section 313 of Criminal Procedure Code. Heard the learned counsel for the parties. Section 141 of Negotiable Instruments Act, 1881 reads as under : 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused Harish Bagla and a Director of the company. But all transactions were made by Harish Bagla with the respondent company. The Supreme Court in the case of Standard Chartered Bank vs. State of Maharashtra and others reported in (2016) 6 SCC 62 ,after considering various judgments on Section 138 and Section 141 of Negotiable Instrument Act, has held that there has to be a specific averment in the complaint to the effect that the Director was responsible and in-charge of the day-to-day business of the Company and in absence of that averment, the said person cannot be vicariously held liable for offence under Section 138 of Negotiable Instruments Act. The Supreme Court in the case of Standard Chartered Bank (Supra) has held as under : 31. Now, is the time to scan the complaint. Mr Divan, learned Senior Counsel appearing for the appellant Bank, has drawn our attention to Paras 2, 4 and 10 of the complaint petition. They read as follows: 2. I further say that I know the accused abovenamed. Accused 1 is a company incorporated under the Companies Act, 1956 having its registered address as mentioned in the cause-title. Accused 2 to 7 are the Chairman, Managing Direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gnatory to the cheques. As far as Accused 4 and 5 were concerned, they were whole-time Directors and the assertion is that they were in charge of day-to-day business of the Company and all of them had with active connivance, mischievously and intentionally issued the cheques in question. In view of the judgment passed by the Supreme Court in the case of Standard Chartered Bank (supra), this Court is of the view that the complaint contains the basic averment to make the applicant vicariously liable under Section 141 of the Negotiable Instruments Act. It is next contended by the counsel for the applicant that this Court while passing the order dated 9/3/2017 in M.Cr.C. No.17940/2016 has observed as under :- 13. In the case of National Small Industries Corporation Ltd. vs. Harmeet Singh Paintal and Another, (2010) 3 SCC 330 the Hon'ble Apex Court while dealing with such a situation like the present one has held as follows: Negotiable Instruments Act, 1881- Ss. 141, 138 and 142 Dishonour of cheque- Offence by company provision of vicarious liability in S. 141 Scope Not every person connected with the company but only those in charge of and responsible fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayed any effective role in the entire transactions, therefore, she cannot be held responsible vicariously. The submissions made by the counsel for the applicant is misconceived and it is hereby rejected. For making a person vicariously liable under Section 141 of Negotiable Instruments Act active role is not required to be played by each Director or Partner of a Company/firm. If a person is responsible and in-charge of day-to-day transactions/business of the Company, then he can be vicariously held liable under Section 141 of the Negotiable Instruments Act. So far as the observations in para 14 made by the co-ordinate bench of this Court in order dated 9-3-2017 passed in M.Cr.C. No. 17940/2016 is concerned, this Court cannot loose sight of the fact, that the only allegation in the said case was that the applicant is the wife of the accused no. 2 Harish Bagla and She is a Director. In view of this averment, it was held by the coordinate bench of this Court that there has to be some active role of the applicant in the transaction. If a person is responsible and in-charge of business of the Company, then the active role of the said person for each and every transaction is not the requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused no.2 Harish Bagla and a Director of the Company. If the submissions made by the counsel for the applicant is considered then in nutshell the submission is that the allegations made by the complainant in the said complaint were not taken note of by this Court in proper perspective. This Court cannot look into the submissions made by the counsel for the applicant. This Court has to consider the order dated 9/3/2017 passed by this Court M.Cr.C. No.l7940/2016 in the light of the observations and facts mentioned in the said order. The facts which are mentioned in the said order are clearly distinguishable from the facts of the present case, therefore, this Court is of the considered opinion that the order dated 9/3/2017 passed in M.Cr.C. No.17940/2016 is clearly distinguishable and the applicant does not get any assistance from the said order. It is next contended by the counsel for the applicant that since it is the case of the complainant himself that the cheques which were issued by the accused no.1 M/s Amrit Feeds Limited. under the signatures of accused no.2 Harish Bagla had stood bounced and thereafter another set of cheques were issued by accused no.2 Harish Bagla thu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to acknowledgment in writing or not is also a question, which is to be decided he Trial Court. This Court is of the considered opinion that since the question of limitation is a mixed question of fact and law, which can be decided by the trial Court only after considering the evidence which would ultimately come on record, therefore, at this stage it is held that there is sufficient allegation in the complaint to proceed against the applicant under Section 138 of Negotiable Instruments Act. It is an undisputed fact that the Trial has reached to an advanced stage and the case is fixed for recording of accused statement. Even otherwise, on that ground also, the application under Section 482 of Cr.P.C. is liable to be dismissed. Thus, this Court is of the considered opinion that the Trial Court did not commit any mistake in taking cognizance of the offence under Section 138 of Negotiable Instruments Act, and hence, the order dated 23-9-2016 passed by the C.J.M., Betul in SC NIA/2301039/2016 is hereby affirmed. Before parting with this order, this Court feels it appropriate to mention that the submissions made by the Counsel for the parties, have been considered in the light ..... X X X X Extracts X X X X X X X X Extracts X X X X
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