9911796707
Advanced Search 
TMI Blog2024 (7) TMI 1212X X X X Extracts X X X X X X X X Extracts X X X X ..... pplied materials to one M/s Tara Enterprises/accused company (accused No.1 in the complaint). Against the supply of same, a balance of Rs.11,03,816/- remained as due. In discharge of the same, the accused company issued a cheque bearing No.679331 dated 22.07.2019 drawn on Punjab National Bank, Behdala (Una), H.P. It was further alleged that the said cheque was issued on the directions and instructions of one Mr. Hoshiyar Singh (accused No.2 in the complaint) and the present petitioner (accused No.3 in the complaint). The said cheque, when presented for encashment, was returned dishonoured due to insufficient fund/NPA account. Resultantly, the respondent issued legal notice dated 17.09.2019 to the accused company as well as the other accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nami capacity. In light of the same, he argues that even though the petitioner is not a partner, but considering his position as the deemed owner, the petitioner should be made liable for the offence under Section 138 NI Act, as it can be understood that the petitioner was in actual control of the affairs of the firm. The petitioner alongwith accused No.2 can be considered as an association of persons, and should be made liable under Section 138 NI Act. To buttress his argument, learned counsel for the respondent has argued that a recovery suit is maintainable against such an association of person and therefore, such an association can also be made liable under Section 138, with the assistance of Section 141 NI Act. 5. At this stage, it wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r a partner nor the authorized signatory of the firm and thus, cannot be made liable under Section 141 NI Act. 7. Before adverting to the merits of the contentions raised by both the parties, it would be apposite to refer to Section 141 NI Act, since the entire matter hinges around it. The said section 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 cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the Memo of Parties as well as the averments made in the complaint. However, during the course of submissions, learned counsel for the respondent has conceded that the petitioner is neither the partner nor the authorized signatory of the firm, but that he seeks to make the petitioner liable based upon the fact that he is the deemed/real owner. 9. In my considered opinion, the said contention raised by the respondent merits rejection. Apart from the bald averment made in the complaint as well as during the course of submissions that the petitioner is the deemed owner of the firm, no other evidence has been produced/placed on record to show that the petitioner is the deemed/real owner or that he was in charge or responsible for the busin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt clarified that in a given case despite the presence of basic averment, the High Court may conclude that no case is made out against the particular Director/partner provided the Director/partner is able to adduce some unimpeachable and incontrovertible evidence beyond suspicion and doubt. (emphasis supplied) xxx 57. When in view of the basic averment process is issued the complaint must proceed against the Directors or partners as the case may be. But if any Director or Partner wants the process to be quashed by filing a petition under Section 482 of the Code on the ground that only a bald averment is made in the complaint and that he is really not concerned with the issuance of the cheque, he must in order to persuade the High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
