EVEREST ADVERTISING PVT LTD Vs. STATE

JUDGEMENT

(1.) These are two petitions under Section 482 of the Code of Criminal Procedure between the same parties involving the same question of law & facts and are accordingly being disposed of by this common order.

(2.) The facts in the two cases are given below: Crl.M.C.3690/2001 titled Everest Advertising Pvt. Ltd. Vs. State & Ors. The petitioner filed the complaint against the respondents 2 & 3 who were the Chairman and Vice Chairman of M/s Dalmia Industries Ltd. as well as apainst M/s Dalmia Industries Ltd. and its three others who were the Director (Technical), Executive Director and Senior Genera! Manager (Finance). It was alleged that the resp ndents 2 & 3 herein as well as the other Directors named in the complaint were in charge of and responsible to the company M/s Dalmia Industries Ltd. for the conduct of the business of the company and were liable to make the payment for the cheque in question in that complaint. The subject matter of the complaint were certain cheques mentioned in the annexures to the complaint issued by M/s Dalmia Industries Ltd. towards job done by the complainant for the accused company. The cheques were dishonoured by the respective banks with the endorsement payment stopped by the drawer or exceeds arrangement. The usual averments of a notice having been issued to the accused and of the failure on the part of the accused to comply with the notice have been made, in the complaint. The accused other than the company namely the respondents 2 & 3 as well as other Directors are alleged to have been responsible for the conduct of the business of the company. It is also alleged that the offence is committed by M/s Dalmia Industries Ltd. with the active connivance of accused 1 to 5. By the impugned order, the Metropolitan Magistrate has recalled the summons issued to the respondents 2 & 3 while maintaining the summons against the other respondents who were Director (Technical), Executive Director and Senior General Manager (Finance). The ground for refusing to summon the respondents 2 & 3 was that no specific role had been assigned to them in respect of the commission of the offence by the accused company. The complainant has challenged the impugned order on the ground that there was no requirement in law to assign any specific role to the respondents who were discharged and that the allegations made against them in the complaint was sufficient for summoning them. Crl.M.C.3691/2001 titled Everest Advertising Pvt Ltd. Vs. State & Ore. The parties in this petition are the same as the parties in the..This complaint relates to three cheques dated 10.2.98, 14.2.98 and 20.1.98 for Rs.3,00,000/-, Rs.3,00,000/- and Rs.2,01,500 respectively which were also returned by the bank on presentation with the remarks payment stopped by drawer . As in the previous matter, the Metropolitan Magistrate found sufficient ground to proceed against all the accused but subsequently on an application, the accused 1 &2, that is respondents 2 & 3 herein were discharged and the order of summoning passed against them was recalled vide the impugned order dated 11.7.2001. This order is challenged on the same grounds as in the..

(3.) In order to examine the question as to whether such allegation is sufficient to summon respondent Nos.2 & 3, it is necessary to refer to the provisions of Section 141 of the Negotiable Instruments Act (in short the ' Act') which provides for the responsibility of an offence committed by a company. Section 141 is extracted below: 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 contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence: Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be. liable for prosecution under this Chapter. (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,-