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TMI Blog2019 (11) TMI 1761X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the business of the company at the time of commission of the offence and hence he will not be liable for criminal action. It may be noted that the firm named as Ravi Organics Ltd., Nai Mandi,Muzaffar Nagar,, who was the principal accused, has not been made party in the complaint as stated above and side by side the necessary averment required to be made in the complaint satisfying the requirements of Section 141 of the Act are also lacking to maintain prosecution. Petition allowed. - Criminal Misc. Writ Petition No. 24632 of 2013 - - - Dated:- 19-11-2019 - Hon'ble Vivek Kumar Singh, J. Counsel for Petitioner : Amit Daga. Counsel for Respondent : Govt. Advocate, Ashish Kaushik, Nazrul Islam. ORDER Hon'ble Vivek Kumar Singh, J. Heard Sri Amit Daga,learned, learned counsel appearing for the petitioner,Sri N.I.Jafri, learned counsel for opposite party no.2 and Sri Sanjay Singh, learned AGA for the State and also perused the record brought on record. This writ petition has been filed with the prayer for quashing the order dated 2.12.2013 passed by Addl. Sessions Judge, Court No.7, Muzaffarnagar in Criminal Revision No.212 of 2013, Dev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tours Private Limited, (2012) 5 SCC 661, the impugned summoning order is erroneous. Learned counsel for the petitioner contended that in a catena of decisions the Apex Court has repeatedly held that if complaint under section 138 N.I.Act is filed in respect of dishonour of cheque issued from the account of company, it is incumbent on the part of complainant to make necessary averments in complaint at the time offence was committed. the person accused was In charge of and responsible for the conduct and business of the company. This averrment is an essential requirement of Section 141 of N.I.Act. In this context, learned counsel for the petitioner has placed reliance on the judgement of this Court in the case of Yogendra Kumar Khullar @ Bittoo Vs.State of U.P. Another reported on2013 1ACR 277 (Criminal Mis.Application No.4452 of 2008) wherein the petition was allowed and entire proceeding was quashed. In support of his contentions, learned counsel for the petitioner has also cited two decisions of Hon'ble Apex Court reported in 2012 (77) ACC 924, Aneeta Hada Vs. M/s Godfather travels Tours Pvt.Ltd. and (2005) 8 SCC 89, S.M.S.Pharmaceuticals Ltd. Vs. Neeta Bhalla a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on account of holding an office or position in a company. For an offence under Section 138 of the Act by the companies, the provisions are provided under Section 141 of the said Act. To decide the controversy at issue, both the provisions of Sections 138 and 141 of the Act are relevant, which are quoted below:- 138.Dishonour of cheque for insufficiency, etc., of funds in account.- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for [a term which may be extended to two years] or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section-- (a) Company means any body corporate and includes a firm or the association of individuals; and (b) director , in relation to a firm, means a partner in the firm. It will be seen from the above provisions that Section 138 of the Act casts criminal liability punishable with imprisonment for a term which may be extended to two years or with fine which may extend to twice the amount of the cheque, or with both on a person who issues a cheque towards discharge of a debt or liability in whole or in part and the cheque is dishonoured by the bank on presentation. Section 141 extends such criminal liability in case of a company to 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. By a deeming provision contained in Section 141 of the Act, such a person is vicariously liable to be held guilty for the offence under Section 138 of the Act and punished accordingly. Considering the facts and circumstance of the present case, according to the complaint itself, the cheque was issued for Pawan Hardware Store, Sandeep talkies,near Court Road, Civil Lines, Muzaffar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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