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TMI Blog2022 (4) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... lainant during the last 4 years and misappropriated the amount of the complainant for their wrongful and personal gain and after repeated request and demand they have arrived at a settlement and agreed to return ₹ 10 crore to the complainant and issued two cheques amounting to ₹ 5 crore each in favour of the complainant against discharge of their liabilities. But, they played foul play with the complainant and both the cheques were dishonoured and they issued the cheques knowing fully well that said cheque will be dishonoured and being the Director of the accused No. 1 Company they have committed the offence of criminal breach of trust and cheating and are liable to be punished accordingly. Section 41 of the Specific Relief Act 1963 lays down in what cases injunction cannot be granted. Under Clause (a) an injunction cannot be granted to restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings. According to Clause (b), an injunction cannot be granted to restrain any person from instituting or prosecuting any proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner company and the opposite party/respondent i.e. M/S Gopiram Chetriram, were involved in a business of dealing of Sugar and were indulging in the same since long. In the year 2018, the petitioner company approached the opposite party/respondent to supply 5200 metric tons of sugar and for that, the opposite party/respondent requested the petitioner company for an advance/security of ₹ 10 crores and the petitioner company, on good faith, issued 2 (two) numbers of Cheques, bearing Nos. 001711 001712, of ₹ 5 crores each in favour of the opposite party/respondent. But, despite receiving the sum, the opposite party did not deliver the requisite quantity of sugar to the petitioner company and as such, the petitioner company requested the opposite party/respondent to return the cheques so issued, but the same was not done. Thereafter, the petitioner company received a notice from the opposite party through his lawyer, dated 01.10.2018, stating that the cheques were presented for encashment by the opposite party/respondent, but the same were dishonored and the petitioner company, through its reply has stated that the cheques, in question, were never issued for discharge o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kata, were neither issued in connection with any legally enforceable debt/liability owed by the petitioner company to the opposite party nor there was any debt/liability owned by the petitioner company to the opposite party at the time of dishonor of cheques. The cheques, in question, were in the form of security/advance which cannot be termed as legally enforceable debt and using of these cheques cannot attract the ingredients of Section 138 of the the Negotiable Instrument Act, 1881, and, therefore, it is contended to set aside and quash the impugned order, dated 18.01.2019. 5. Heard Mr. Pran Bora, learned counsel appearing on behalf of the petitioners. Also heard Mr. Z. Kamar, learned senior counsel assisted by Mr. D. Talukdar, learned counsel appearing on behalf of the respondents. 6. Mr. P. Bora, the learned counsel for the petitioners submits that in connection with the business transaction between the petitioners and the respondents the petitioners have issued two cheques being Cheque No. 001711 dated 30.08.2018 for a sum of ₹ 5,00,000/- and Cheque No. 001712 dated 30.08.2018 for a sum of ₹ 5,00,000/- and the same were dishonoured on the ground of insuffic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e criminal proceedings under 138 N.I. Act pending before the Court of learned CJM, Tinsukia. 7. Whereas Mr. Z. Kamar, learned senior counsel, assisted by Mr. D. Talukdar, submits that the two cheques, being No. 001711 and No. 001712, were issued by the petitioners in discharge of their legally enforceable debt and the said two cheques were issued on 30.08.2018 and the same was presented with the banker of the respondents on 13.09.2018. But, the same returned dishonoured on the ground of insufficient fund. Thereafter, demand notice was issued to the petitioners on 19.09.2018, and the petitioners have received the same and thereafter requested the respondents to present the cheque after one month again. Accordingly, the respondent presented the cheque on 21.11.2018, But, again the same returned dishonoured with a remark insufficient fund and the respondents received the same on 29.11.2018. Further Mr. Kamar submits that demand notice was issued to the petitioners on 20.12.2018 and the same was received by the petitioners on 27.12.2018. Thereafter, the respondent instituted the complaint on 17.01.2019 and cognizance was taken by the court on 18.01.2019 and thereafter process wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ie. It is further submitted that Smt. Sangeeta Kejriwal took active part in the business transaction and settlement of the account between the parties till issuance of the cheques in question and as such she and the Director are jointly and severely liable for the act of the Company i.e. the accused No. 1. And in support of his submission Mr. Kamar has referred to one case law on Hon ble Supreme Court of Summy Bhasin Vs. State of NCT reported in 2021 SCC online Delhi 1189 . Mr. Kamar under the premises of aforesaid circumstances contended to dismiss the petition as the petitioners miserably failed to make out a case for invoking the jurisdiction under Section 482 of the Code of Criminal Procedure. 8. Having heard the submission of learned Advocates of both sides, I have carefully gone through the petition and the documents placed on record and also the case laws referred by learned Advocates of both the parties. 9. It appears that in the case of National Small Industries Corporation Limited Vs. Harmid Singh Pental (supra) Hon ble Supreme Court has held that - it is very clear from Section 141 of the Act that what is required is that the person who is sought to be mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duct of its business. When that is so, holders of such positions in a company become liable under Section 141 of the act. By virtue of the office they hold as Managing Director or Joint Managing Director, these persons are in charge of and responsible for the conduct of business of the company. Therefore, they get covered under Section 141. So far as the signatory of a cheque which is dishonoured is concerned, he is clearly responsible for the incriminating act and will be covered under sub-section (2) of Section 141. 11. And in the case of Monaben Ketanbhai Shah Vs. State of Gujarat (supra), Hon ble Supreme Court held that 6. From the above, it is evident that in the complaint there are no averments against the appellants except stating in the title that they are partners of the firm. Learned counsel for the respondent complainants contended that a copy of the partnership deed was also filed which would show that the appellants were active in the business. No such document was filed with the complaint or made part thereof. The filing of the partnership deed later is of no consequence for determining the point in issued. Section 141 does not make all partners liable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d two cheques amounting to ₹ 5 crore each in favour of the complainant against discharge of their liabilities. But, they played foul play with the complainant and both the cheques were dishonoured and they issued the cheques knowing fully well that said cheque will be dishonoured and being the Director of the accused No. 1 Company they have committed the offence of criminal breach of trust and cheating and are liable to be punished accordingly. 13. Thus, it is apparent that a clear averment is made in the complaint that at the time of commission of the offence they were in charge of and responsible to the company for the conduct of business to the company and as such they are vicariously liable for a criminal offence under Section 141 of the N.I. Act. 14. In view of above, the case laws referred by Mr. Pran Bora, learned counsel for the petitioners would not come into his aid, rather it indirectly helps the respondents. 15. Further it appears that the two cheques were issued on 30.08.2018, and the said two cheques were deposited with the State Bank of India on 13.09.2018. But, the same returned dishonoured due to insufficient fund, and when the matter is reported to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rically held that injunction cannot be granted to restrain any person from instituting or prosecuting any proceeding in a criminal matter. In holding so this court relied upon a case law of Hon ble Supreme Court in Cotton Corporation of India Limited v. United Industrial Bank Limited, AIR 1983 SC 1272, where it has been held that:- The Legislature manifestly expressed its mind by enacting Section 41(b) in such clear and unambiguous language that an injunction cannot be granted to restrain any person, the language takes care of injunction acting in personum, from instituting or prosecuting any proceeding in a Court not subordinate to that from which injunction is sought. Section 41(b) denies to the Court the jurisdiction to grant an injunction restraining any person from instituting or prosecuting any proceeding in a Court which is not subordinate to the Court from which the injunction is sought . 18. Again Hon ble Supreme Court in M. Krishnan (supra) held that if mere pendency of a suit is made as a ground for quashing criminal proceeding unscrupulous litigant apprehending action against them would be encouraged to frustrate the court of justice and by law filing civil su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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