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TMI Blog2024 (10) TMI 885X X X X Extracts X X X X X X X X Extracts X X X X ..... y is prosecuted. But instead of prosecuting the company if a payee opts to prosecute only the persons falling within the second or third category the payee can succeed in the case only if he succeeds in showing that the offence was actually committed by the company. In such a prosecution the accused can show that the company has not committed the offence, though such company is not made an accused, and hence the prosecuted accused is not liable to be punished. The provisions do not contain a condition that prosecution of the company is sine qua non for prosecution of the other persons who fall within the second and the third categories.' Thus, it is a fit case where the continuation of criminal proceedings shall amount to an abuse of the process of law, and the Court invokes its inherent jurisdiction under section 482 CrPC to quash the summons qua the petitioner and all subsequent proceedings. The summoning orders qua all the petitioners, are quashed and set aside - petition allowed. - CRM-M-16624-2023, CRM-M-16830-2023, CRM-M-16833-2023, CRM-M-16848-2023, CRM-M-16849-2023, CRM-M-16863-2023, CRM-M-16888-2023, CRM-M-16891-2023, CRM-M-27482-2023, CRM-M-27940-2023, CRM-M-27481-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 05.07.2022 bearing CNR No.PBTTA1-001502-2022 CRM-M-28779-2023 Criminal Complaint No.185 of 2022 filed on 05.07.2022 bearing CNR No.PBTTA1-001495-2022 CRM-M-28832-2023 Criminal Complaint No.172 of 2022 filed on 05.07.2022 bearing CNR No.PBTTA1-001505-2022 CRM-M-29246-2023 Criminal Complaint No.171 of 2022 filed on 05.07.2022 bearing CNR No.PBTTA1-001502-2022 CRM-M-40589-2023 Criminal Complaint No.1992 of 2022 filed on 12.09.2022 bearing CNR No.PBTTA1-001997-2022 CRM-M-40607-2023 Criminal Complaint No.262 of 2022 filed on 12.09.2022 bearing CNR No.PBTTA1-001990-2022 CRM-M-40646-2023 Criminal Complaint No.264 of 2022 filed on 12.09.2022 bearing CNR No.PBTTA1-001992-2022 CRM-M-9669-2023 Criminal Complaint No.268 of 2022 filed on 19.09.2022 bearing CNR No.PBTTA1-001996-2022 CRM-M-16595-2023 Criminal Complaint No.262 of 2022 filed on 12.09.2022 bearing CNR No.PBTTA1-001990-2022 CRM-M-29370-2023 Criminal Complaint No.179 of 2022 filed on 05.07.2022 bearing CNR No.PBTTA1-001501-2022 CRM-M-29403-2023 Criminal Complaint No.265 of 2022 filed on 19.09.2022 bearing CNR No.PBTTA1-001993-2022 CRM-M-36861-2023 Criminal Complaint No.267 of 2022 filed on 19.09.2022 bearing CNR No.PBTTA1-001995-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rporation Ltd versus Harmeet Singh PAI NTL Pentel 2010 volume 2 RCR criminal 122, considering the absence of a specific role, the Supreme Court absolved him of the liabilities. Similarly, in S and S Pharmaceuticals versus Mothanwala 2007 RCR criminal 126 Hon ble Supreme Court held that the director's liability must be determined when the offence was committed and merely being a party to the resolution would not be sufficient. In one Mahla service, private limited versus Nunera 2015 volume 1 SEC civil 433 Supreme Court took a similar view. 6. The respondent s counsel seeks dismissal of the petition and submits that the appropriate stage for discharge is before the trial Court and not the inherent jurisdiction of this Court. 7. It is most appropriate to extract the relevant portion of the complaint, which reads as follows: 5. That on demanded of the above said amount, the accused issued one part payment cheque bearing No. 296757 dated 30.04.2022 of Rs.1,19,943/- drawn at Canara Bank Branch Fazilka, District Fazilka of against accused bank account bearing No.1400261050504 of M/s Kissan Commission Agent for legal liability/on behalf of M/s J.K. Industries and accused No.2 Mukesh Ku ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded and as a necessary adjunct thereof a partner of the firm is treated as director of that company. [11]. Thus when the drawer of the cheque who falls within the ambit of Section 138 of the Act is a human being or a body corporate or even firm, prosecution proceedings can be initiated against such drawer. In this context the phrase as well as used in sub-section (1) of Section 141 of the Act has some importance. The said phrase would embroil the persons mentioned in the first category within the tentacles of the offence on a par with the offending company. Similarly the words shall also in sub-section (2) are capable of bringing the third category persons traditionally within the dragnet of the offence on an equal par. The effect of reading Section 141 is that when the company is the drawer of the cheque such company is the principal offender under Section 138 of the Act and the remaining persons are made offenders by virtue of the legal fiction created by the legislature as per the Section. Hence the actual offence should have been committed by the company, and then alone the other two categories of persons can also become liable for the offence. [12]. If the offence was committe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused No.1 in the complaint. The learned Judge has observed that it was not possible at this stage to ascertain as to whether the concerne d appellants were the partners of the partnership firm and whether there was any partnership firm in existence. When we see the complaint filed in trial Court, it is very clearly stated as under : 6. The second accused is guilty, as drawer of the cheque on behalf of Accused No.1, as its Managing Partner. The Accused Nos. 3 and 4 being partners of the Accused No.1, were in charge of and were responsible for the conduct of the business of Accused No.1, and shall also be deemed to be guilty of the offence. Therefore, the question as to whether the present appellants, who were accused No.3 and 4, were the partners of the firm and were responsible for conduct of business is the disputed question of fact which could not have been gone into under Section 482 Criminal Procedure Code The High Court was absolutely right in not entertaining that question. It would be during the trial for the accused persons to urge that they were not in any way concerned with the said partnership firm. In our opinion, the High Court was absolutely right in dismissing the p ..... 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