WWW.LIVELAW.IN HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc(Pet.) No. 2726 / 2014 Smt.Asha Baldwa W/o Late Shri Rampal Ji Baldwa, Partner-M/s Baldwa Brothers R/o 5-D-4, R.C. Vyas Colony, Bhilwara, Rajasthan. ----Petitioner Versus 1. Ram Gopal S/o Satyanarayan Ji Agarwal, Proprietor-M/s Ajanta Transport Company, 57-Transport Nagar Bhilwara, Rajasthan. 2. State of Rajasthan. ----Respondent Connected With S.B. Criminal Misc(Pet.) No. 2727 / 2014 Smt.Asha Baldwa W/o Late Shri Rampal Ji Baldwa, Partner-M/s Baldwa Brothers R/o 5-D-4, R.C. Vyas Colony, Bhilwara, Rajasthan. ----Petitioner Versus 1. Ram Gopal S/o Satyanarayan Ji Agarwal, Proprietor-M/s Ajanta Transport Company, 57-Transport Nagar Bhilwara, Rajasthan. 2. State of Rajasthan. ----Respondent S.B. Criminal Misc(Pet.) No. 2728 / 2014 Smt.Asha Baldwa W/o Late Shri Rampal Ji Baldwa, Partner-M/s Baldwa Brothers R/o 5-D-4, R.C. Vyas Colony, Bhilwara, Rajasthan. ----Petitioner Versus 1. Ram Gopal S/o Satyanarayan Ji Agarwal, Proprietor-M/s Ajanta Transport Company, 57-Transport Nagar Bhilwara, Rajasthan. 2. State of Rajasthan. ----Respondent S.B. Criminal Misc(Pet.) No. 2730 / 2014 Smt.Asha Baldwa W/o Late Shri Rampal Ji Baldwa, Partner-M/s Baldwa Brothers R/o 5-D-4, R.C. Vyas Colony, Bhilwara, Rajasthan.

WWW.LIVELAW.IN (2 of 8) [ CRLMP-2726/2014]

----Petitioner Versus 1. Ram Gopal S/o Satyanarayan Ji Agarwal, Proprietor-M/s Ajanta Transport Company, 57-Transport Nagar Bhilwara, Rajasthan. 2. State of Rajasthan. ----Respondent S.B. Criminal Misc(Pet.) No. 64 / 2015 Smt.Asha Baldwa W/o Late Shri Rampal Ji Baldwa, Partner-M/s Baldwa Brothers R/o 5-D-4, R.C. Vyas Colony, Bhilwara, Rajasthan. ----Petitioner Versus 1. Ram Gopal S/o Satyanarayan Ji Agarwal, Proprietor-M/s Ajanta Transport Company, 57-Transport Nagar Bhilwara, Rajasthan. 2. State of Rajasthan. ----Respondent _____________________________________________________ For Petitioner(s)

: Mr. Naman Mohnot.

For Respondent(s) : Mr. AK Babel. _____________________________________________________ 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

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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

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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.

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(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

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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

WWW.LIVELAW.IN (7 of 8) [ CRLMP-2726/2014]

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

sub-

section (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,—

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(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. ck

Asha Baldwa_Section 138.pdf

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 ...

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