perusing the record of the case as well as the precedent law, this
Court is of the opinion that the legislative intention while making a
specific provision of Company/Firm was that any person who was
not directly responsible or merely a Director of Company or Firm
could be held guilty for the alleged offence, only if he had
committed offence with the consent of such person. On a bare
reading of the complaint as well as the record, it is clear that only
role of the petitioner is that she handed over the cheque but it has
not been alleged that what was her role in consenting to the
offence that is a default or dishonoring of the cheque.
A bare reading of the complaint as well as the relevant
law, on the face of it, makes it clear that the offence is not made
out against the present petitioner as she neither issued the
cheque and it has not been attributed to her and the allegation
was that she had handed over the cheques which does not mean
she had consented to offence by any stretch of imagination. Since
the basic ingredients itself are missing, therefore, the present
misc. petitions deserve to be allowed.
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 2726 / 2014
Smt.Asha Baldwa
V
Ram Gopal
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order:13/09/2017
1. The petitioner has preferred this misc. petition under
Section 482 of Cr.P.C. for quashing of the entire proceeding of
criminal regular case No.291/2013 pending in the court of learned
Special Magistrate (N.I. Act Cases No.1) Bhilwara, qua the
petitioner, offence under Section 138 of the Negotiable Instrument
Act.
2. The brief facts of this case are that a complaint was
filed under Section 138 of the Negotiable Instrument Act, by the
respondent against the petitioner and her son. The complaint
proceeded and after an enquiry, cognizance has been taken
against the present petitioner vide order dated 18.03.2013. It is
an admitted position that the cheque was issued by the son of the
present petitioner. It is also an admitted position that the
petitioner was not the original partner in the Firm, but came into
the picture only when her husband expired and she entered the
Firm.
3. Learned counsel for the petitioner has shown from
Section 141(2) of the Negotiable Instrumen Act,1881 that the
allegation can only be levelled against the Company or its partners
or its Directors only when the offence was committed with the
consent or connivance or, is attributable to, any neglect on the
part of, any director, manager, secretary or partners.
4. Learned counsel for the respondents vehemently
argued that the cheque was handed over to the present
respondent by the petitioner and, therefore, she was consenting
party to the act of giving the cheque and, therefore, responsible
for any proceedings in consequence of giving the cheque.
5. Learned counsel for the respondents has relied upon
the judgment passed by Hon’ble Supreme Court in K.K. Ahuja
vs. V.K. Vora and Anr., (2009) 10 SCC 48 and the relevant
portion of judgment is reproduced as follows:
“18. Sub-section (2) of section 141 provides that a
Director, Manager, Secretary or other officer, though
not in charge of the conduct of the business of the
company will be liable if the offence had been
committed with his consent or connivance or if the
offence was a result of any negligence on his part.
The liability of persons mentioned in sub-section (2) is
not on account of any legal fiction but on account of
the specific part played - consent and connivance or
negligence. If a person is to be made liable under
sub-section (2) of section 141, then it is necessary to
aver consent and connivance, or negligence on his
part.
25. It should, however, be kept in view that even an
officer who was not in charge of and was responsible
to the company for the conduct of the business of the
company can be made liable under sub-section (2) of
Section
141. For making a person liable under Section 141(2),
the mechanical repetition of the requirements
under Section 141(1) will be of no assistance, but
there should be necessary averments in the complaint
as to how and in what manner the accused was guilty
of consent and connivance or negligence and
therefore, responsible under sub-section (2) of section
141of the Act.
27. The position under section 141 of the Act can be
summarized thus :
(i) If the accused is the Managing Director or a Joint
Managing Director, it is not necessary to make an
averment in the complaint that he is in charge of, and
is responsible to the company, for the conduct of the
business of the company. It is sufficient if an
averment is made that the accused was the Managing
Director or Joint Managing Director at the relevant
time. This is because the prefix `Managing' to the
word `Director' makes it clear that they were in
charge of and are responsible to the company, for the
conduct of the business of the company.
(ii)In the case of a director or an officer of the
company who signed the cheque on behalf of the
company, there is no need to make a specific
averment that he was in charge of and was
responsible to the company, for the conduct of the
business of the company or make any specific
allegation about consent, connivance or negligence.
The very fact that the dishonoured cheque was signed
by him on behalf of the company, would give rise to
responsibility under sub-section (2) of Section 141.
(iii) In the case of a Director, Secretary or Manager
(as defined in Sec. 2(24) of theCompanies Act) or a
person referred to in clauses (e) and (f) of section
5 of Companies Act, an averment in the complaint
that he was in charge of, and was responsible to the
company, for the conduct of the business of the
company is necessary to bring the case under section
141(1). No further averment would be necessary in
the complaint, though some particulars will be
desirable. They can also be made liable under section
141(2) by making necessary averments relating to
consent and connivance or negligence, in the
complaint, to bring the matter under that sub-section.
(iv)Other Officers of a company can not be made
liable under sub-section (1) of section 141. Other
officers of a company can be made liable only under
sub-section (2) of Section 141, be averring in the
complaint their position and duties in the company
and their role in regard to the issue and dishonour of
the cheque, disclosing consent, connivance or
negligence.”
6. After hearing the learned counsel for the parties and
perusing the record of the case as well as the precedent law, this
Court is of the opinion that the legislative intention while making a
specific provision of Company/Firm was that any person who was
not directly responsible or merely a Director of Company or Firm
could be held guilty for the alleged offence, only if he had
committed offence with the consent of such person. On a bare
reading of the complaint as well as the record, it is clear that only
role of the petitioner is that she handed over the cheque but it has
not been alleged that what was her role in consenting to the
offence that is a default or dishonoring of the cheque.
7. This Court is of the opinion that the precedent law cited
by the learned counsel for the respondent does not come to the
rescue of the respondents as the Hon’ble Apex Court has merely
laid down the parameters of Section 141(2) of the Negotiable
Instrument Act.
8. The Negotiable Instrument Act is defined in Section 13
for N.I. Act of 1881 and the definition reads as follows:
"(1) A “negotiable instrument” means a promissory
note, bill of exchange or cheque payable either to
order or to bearer. Explanation (i).—A promissory
note, bill of exchange or cheque is payable to order
which is expressed to be so payable or which is
expressed to be payable to a particular person, and
does not contain words prohibiting transfer or
indicating an intention that it shall not be transferable.
Explanation (ii).—A promissory note, bill of exchange
or cheque is payable to bearer which is expressed to
be so payable or on which the only or last
indorsement is an indorsement in blank. Explanation
(iii).—Where a promissory note, bill of exchange or
cheque, either originally or by indorsement, is
expressed to be payable to the order of a specified
person, and not to him or his order, it is nevertheless
payable to him or his order at his option.] 2[(2) A
negotiable instrument may be made payable to two or
more payees jointly, or it may be made payable in the
alternative to one of two, or one or some of several
payees.”
9. The purport of the special law under the N.I. Act is to
ensure that the promise to pay is abided by the person so
promising. The provision under Section 139 of the N.I. Act is that
it shall be presumed that the holder of a cheque received the
cheque of the nature referred to in Section 138 of the N.I. Act for
the discharge, in whole or in part, of any debt or other liability.
Thus, in the basic law of the N.I. Act,1881, the legislative
intention was that the holder of the cheque shall be entitled to
receive the amount so promised from the person from whom the
cheque is received. Any person, other than the person could be
held responsible under Section of 141(2) of the N.I. Act only when
he is a office bearer of the Company of Firm.
10 Section 141(2) of the N.I. Act, reads as follows:
“(2) Notwithstanding anything contained in subsection
(1), where any offence under this Act has
been committed by a company and it is proved that
the offence has been committed with the consent or
connivance of, or is attributable to, any neglect on the
part of, any director, manager, secretary or other
officer of the company, such director, manager,
secretary or other officer shall also be deemed to be
guilty of that offence and shall be liable to be
proceeded against and punished accordingly.
Explanation.— For the purposes of this section,—
(a) “company” means any body corporate and
includes a firm or other association of individuals; and
(b) “director”, in relation to a firm, means a partner in
the firm.”
11. A bare reading of the complaint as well as the relevant
law, on the face of it, makes it clear that the offence is not made
out against the present petitioner as she neither issued the
cheque and it has not been attributed to her and the allegation
was that she had handed over the cheques which does not mean
she had consented to offence by any stretch of imagination. Since
the basic ingredients itself are missing, therefore, the present
misc. petitions deserve to be allowed.
12. Hence, the misc. petitions are allowed and the
impugned order dated 18.03.2013 qua the petitioner is quashed
and set aside and the petitioner is exonerated from the criminal
prosecution in question.
(DR. PUSHPENDRA SINGH BHATI)J.
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