Kishori Lal vs Pawan Kumar

S.C. Malte, J.

1.This petition u/s 482 of the Code of Criminal procedure has been filed for a prayer for quashing a complaint filed under Sections 138/142 of the Negotiable Instruments Act, 1881. The Respondent Pawan Kumar filed a complaint that certain cheques issued in his favour were returned dishonoured, and the accused did not pay the amount despite service of notice. In the complaint it is stated that there was some agreement dated 4.4.1990, and in pursuance of that agreement, nine post dated cheques totalling to amount of Rs. 8,50,000/ - and a pay order dated 6.4.1990 for Rs. 30,060/ - was given to the complainant in order to discharge liability arising under that agreement. The five cheques in question were presented by the complainant for encashment. These were received back dishonoured with an endorsement that the amount of the cheques exceeds arrangements. In the complaint it is not clarified who out of five accused had issued the cheques.

In the course of hearing of this matter, xerox copies of these cheques in question have been placed on record as Annexure R-7 to R-15. Besides that, a xerox copy of the agreement which formed the basis for giving these cheques to the complainant was also placed before me for consideration. A base look to the agreement indicates that accused 3 Ashok Kapur (not Petitioner in this case) had signed those cheques for and on behalf of accused 5 M/s. Panch Rattan Hotel Pvt. Ltd., Manali. Moreover, it may be mentioned at this juncture that accused 5 M/s. Panch Rattan Hotel Pvt. Ltd., is shown in the complaint as through its Managing Director Ashok Kapur. This aspect has some bearing while disposing of this case, because the only issue raised in this case was that the Petitioners before me cannot be prosecuted because they are not the persons looking after the business of the Company or in any way incharge or responsible for the conduct of the business of the Company.

The Respondent-complainant contended that the counsel for the Petitioners in the course of hearing of the matter had raised the contention that the total amount has been paid, and while supporting that contention, he has relied on certain cheques which were received back from the Respondent. It was claimed by him that this aspect clearly indicates that the Petitioners before the Court are equally concerned and responsible for the conduct of the business of the Company which is shown as accused No. 5.

The short question, therefore, would be whether these-two Petitioners can be prosecuted on the ground that they were incharge or were responsible for the conduct of the business of the Company. The Petitioners had initially taken the matter by way of revision to the Court of Sessions. Annexure R-1/A indicates that that revision petition was dismissed by the Additional sessions Judge on 18.11.1992 by observing that the order issuing process against the accused did not end into terminating the proceedings before the Magistrate and, therefore, the revision was not tenable. He did not consider the merits of the case. As such his approach while dismissing the revision petition is not quite correct. Under these circumstances, now the matter has come up before this Court by way of petition u/s 482 Code of Criminal Procedure. in the complaint in all five accused are shown. Out of them present Petitioners are accused Nos. 3 and 4. Accused No. 5 is M/s. Panch Rattan Hotel Pvt. Ltd. Accused 3/Petitioner is shown as a Director and accused 4 Kishori Lal (Petitioner 1) is shown as a shareholder. It is not clarified in the complaint whether these two persons were incharge of an responsible for the conduct of the business of the Company. Section 141 of the Negotiable Instruments Act, 1881, provides that in cases of offence committed by the 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 would be deemed to be guilty of the offence. It was, therefore, necessary to make an averment that these two Petitioners were thus incharge of or were responsible to, the company for the conduct of the business of the company. Neither there is such an averment nor it is possible to spell out from the material before me that they were thus covered by the provisions of Section 141 of the Negotiable Instruments Act. At this juncture, it may be mentioned that the cheques in question have been signed by Ashok Kapur, as can be ascertained on a bare look at the signatures on the photostat copy of the agreement on which reliance was placed by the complainant, and on comparing it with the signatures appearing on the photostat copies of the cheques at Annexure R-9 to R-15. However, this comparison by me at this stage need not be considered as the one u/s 73 of the Evidence Act nor it can be considered as a decision on the point. However, in the absence of any clear averment in the complaint as to the person who signed the cheques in question. I was left with no other alternative but to consider the available material to ascertain prima facie for the limited purpose as to who had signed the cheques in question. For the purpose of this revision petition only, therefore, I have formed my tentative opinion and it should not be taken as a conclusion drawn on the basis of some evidence of Expert or otherwise. This is by way of caution to the trial Court.

The agreement in question is signed by Complainant Pawan Kumar and accused 1 Ashok Kapur who was acting for and on behalf of accused 5 M/s. Panch Rattan Hotel Pvt. Ltd. Briefly stated, therefore, the Petitioners Kishori Lal and Deepak Kapur are not shown to be in any way incharge of, and, were responsible to, the company for the conduct of the business of the company mentioned above. Petitioner 1 Kishori Lal is shown as a shareholder of the Company (accused 5). A shareholder would not be said to be incharge of, and, responsible to, the company for the conduct of the business of the company unless there is some material to show in that respect. Petitioner 2 Deepak Kapur is shown as Director of the company. But as person holding the post of a Director would not be necessarily covered by Section 141 unless it is alleged and proved that he in his capacity as a Director of the company was the incharge of, and, was responsible to, the company for the conduct of the business of the company. The Respondent was not able to place before me any satisfactory material to show that these Petitioners are also covered by the provisions of Section 141 of the Negotiable Instruments Act. The Petitioners cannot be said to be covered by Section 141 of the said Act merely because at one point of time the counsel for the Petitioners happened to rely on certain cheques obtained back from the complainant. Therefore, it was not necessary to call upon the lawyer to produce such cheques which probably had come in his possession. The application of Section 141 of the Negotiable Instruments Act would be a matter of fact to be alleged and proved. Under the circumstances, the petition is allowed. The complaint, in so far as it relates to the Petitioners, is quashed.