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TMI Blog2023 (10) TMI 717X X X X Extracts X X X X X X X X Extracts X X X X ..... 'material alteration'. Section 138 NI Act does not contemplate that whenever any cheque is issued then the drawee must fill all the details in the cheque in his own handwriting for its validity u/s 138 NI Act. Even if, the contention of the revisionist is accepted as regard undated cheque, the same would be covered within the provision of Section 138 NI Act, so long as, the revisionist has admitted his signatures on the cheque. The Hon ble Apex Court in case of T. NAGAPPA VERSUS Y.R. MURALIDHAR [ 2008 (4) TMI 789 - SUPREME COURT] had observed that the accused should be given fair trial to lead evidence in his defence, however, it was also categorically held that the Court being the master of the proceedings has to determine as to whether the application of the accused in terms of Section 243 Cr.P.C. is bona fide or not or whether the accused intends to bring on record a relevant material. The facts of the present case are, undoubtedly, differentiable from the facts of the said case. This Court does not find any infirmity with the orders passed by both the Courts below by way of which the application filed by the petitioner under Section 243 read with Section 293 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion by Government Scientific Expert and another application seeking summoning of the witnesses as mentioned in the application. 2. The factual background of the present case, in brief, is that respondent no. 2/complainant M/s. Rakesh Press had filed a complaint under Section 138 of Negotiable Instruments Act, 1881 ( NI Act ) whereby it was stated that the complainant was engaged in the business of printing books, magazines and other periodicals for respondent no. 3/accused i.e. M/s. Duggals Print House , a sole proprietorship concern, and as on 02.07.2014, there was an outstanding balance to the tune of Rs. 11,08,802/- against respondent no. 3. It was alleged that towards the said liability, the sole proprietor of respondent no. 3 i.e. Mr Siddharth Duggal (petitioner herein) had acknowledged his liability as on 31.03.2016 and letters were also exchanged between the complainant and the accused. Eventually, as alleged, a cheque bearing no. 166360 dated 17.08.2016 of Rs. 2,00,000/- drawn on Union Bank of India, Rajouri Garden branch, New Delhi was issued towards discharge of liability of respondent no. 3 as part-payment and the petitioner had assured respondent no. 2 that h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is dismissed above, examination of this witness is automatically disallowed. No purpose will be served by examination of the witness mentioned at serial no. 2, bank witness as the signature of the cheque has already been admitted by accused no. 2 in response to Notice u/s 251 CrPC dated 06.03.2018, hence, the said witness is disallowed as well. Status of the accused firm has not been in dispute, hence witness mentioned at serial no. 3, VAT department is also disallowed... 4. Aggrieved by the aforesaid order, the petitioner had preferred a revision petition before the learned ASJ. By way of order dated 23.01.2023, the learned ASJ had also dismissed the revision petition filed by the petitioner on the ground that there was no infirmity in the order of learned Magistrate and that neither the examination of cheque was required as there was no material alteration in the same, nor the witnesses as mentioned in the application were necessary to be called for the adjudication of present case. 5. The present writ petition has been preferred assailing both the aforesaid orders of learned ASJ dated 23.01.2023 and learned Magistrate dated 17.10.2019. 6. The case set out by the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner argues that the cheque in question was issued by respondent no. 3 which was the sole proprietorship firm of petitioner s mother and though the cheque had been signed by the petitioner herein, the same had been done only in the capacity of authorised signatory of the accused firm, and since he was/is not the proprietor of the accused firm, he is not liable to pay any amount to the complainant. It is also stated that the impugned order passed by learned ASJ suffers from illegality especially on the ground that the learned ASJ wrongly held that the petitioner being authorised signatory of the proprietorship firm would be liable in view of the provisions of Section 141 of NI Act. In this regard, it is argued by learned counsel that Section 141 has no application to a sole proprietorship firm and even the complaint filed by the respondent no. 2 was only under Section 138 of NI Act and not under Section 141. It is stated that the petitioner had already brought to the knowledge of complainant, when he had issued the reply to legal notice, that petitioner was not the sole proprietor but only an authorised representative of her mother, who was the sole proprietor of the accused no. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 49 permits the holder of a negotiable instrument endorsed in blank to fill up the said instrument by writing upon the endorsement, a direction to pay any other person as endorsee and to complete the endorsement into a blank cheque, it makes it clear that by doing that the holder does not thereby incur the responsibility of an endorser. Likewise, Section 86 states that where the holder acquiesces in a qualified acceptance, or one limited to part of the sum mentioned in the bill, or which substitutes a different place or time for payment, or which, where the drawee are not partners, is not signed by all the drawees, all previous parties whose consent has not been obtained to such acceptance would stand discharged as against the holder and those claiming under him, unless on notice given by the holder they assent to such acceptance. Section 125 NI Act permits the holder of an uncrossed cheque to cross it and that would not render the cheque invalid for the purposes of presentation for payment. These provisions indicate that under the scheme of the NI Act an incomplete cheque which is subsequently filled up as to the name, date and amount is not rendered void only because it was so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... que in his own handwriting for its validity u/s 138 NI Act. Even if, the contention of the revisionist is accepted as regard undated cheque, the same would be covered within the provision of Section 138 NI Act, so long as, the revisionist has admitted his signatures on the cheque. Therefore, the Ld. MM was fully justified in dismissing the application of the revisionist for sending the cheque in question to FSL. I do not find any infirmity in the order of the Ld. MM dismissed the first application of the revisionist... 11. In this regard, a reference can also be made to the decision of Hon ble Apex Court in case of Bir Singh v. Mukesh Kumar(2019) 4 SCC 197, in which it was held as under: 33. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 13. Thus, this Court does not find any infirmity with the orders passed by both the Courts below by way of which the application filed by the petitioner under Section 243 read with Section 293 of Cr.P.C. read with Section 45/73 of Indian Evidence Act, 1872 was dismissed. Accordingly, the orders of dismissal of application seeking summoning of Director, FSL also warrants no interference. 14. Needless to say, the issue as to whether the cheque was actually issued in respect of any legally enforceable debt or was a security cheque which had been misused shall be decided by the learned Trial Court on the basis of material available on record, testimonies of the witnesses and the arguments addressed before it at the final stage of adjudication, as per law. 15. However, as regards the second issue i.e. whether the petitioner can be held liable, by virtue of Section 141 of NI Act, even if it is proved that he is not the sole proprietor of the accused firm, this Court finds merit in the argument of learned counsel for petitioner that Section 141 of NI Act has no application to a sole proprietorship firm, and under Section 138 of the Act, no other person except the sole proprieto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and scope of Section 141 of the Act, which envisages that if the person committing an offence under Section 138 is a company, every person who, at the time of 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. Company includes a partnership firm and any other association of individuals. The sole proprietorship firm would not fall within the meaning of partnership firm or association of individual. Vicarious liability cannot be fastened on the employees of a sole partnership firm, by taking aid of Section 141 of the Act, inasmuch as, no evidence has been led to show that the business was run by the respondent no. 2... (Emphasis supplied) 17. Thus, a perusal of the aforesaid judicial precedents makes it clear that is only the sole proprietor who can be held liable under Section 138 of NI Act for dishonour of a cheque, drawn on the account maintained by the sole proprietorship firm and any other person cannot be held vicariously liable inasmuch as Section 141 of NI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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