BYFERED LEASING LTD Vs. PRIAYA PHARMACEUTICALS LTD

JUDGEMENT

(1.) THE respondent No. 1 had filed a complaint against the petitioner as well as respondent No. 2 on the allegations that for an amount which was due to respondent No. 1, the petitioner company had issued a cheque for Rs. 2 lacs. This cheque was signed by respondent No. 2 and one Mrs. Rita Mathur being authorised signatories of the petitioner company having been authorised by a resolution of the company to sign the cheques. The said cheque, on presentation to the bank, was not honoured and in spite of notice, the amount of the cheque having not been paid to the complainant a complaint under Section 138 of the Negotiable Instruments Act was filed against the petitioner as well as against respondent No. 3 and Mrs. Rita Mathur. Mrs. Rita Mathur has since died and there is no complaint against her. The Metropolitan magistrate, after recording the evidence, being satisfied that a prima facie case had been made out, issued summons to the petitioner and respondent No. 2. Being dissatisfied with the issue of summons, the petitioner made an application before the Metropolitan magistrate for recalling of summons. However, the said application was dismissed by the Court of the Metropolitan Magistrate by the impugned order dated 29th january, 1993. The petitioners have now filed this petition under Section 482 of the code of Criminal Procedure for quashing the complaint.

(2.) THE contention of the learned counsel for the petitioner is that petitioner No. 2 is not, in any manner, responsible for the issue of the cheque inasmuch as respondent no. 2 and Mrs. Rita Mathur were the authorised signatories of the cheque and they were authorised to issue cheques on behalf of the company. In these circumstances, according to Mr. Khanna, petitioner No. 1 cannot be held responsible for issue of the cheque. According to him, under the provisions of Section 141 of the Act, in the case of companies, it is only the person who at the relevant time was in charge of and was responsible to the company for the conduct of the business of the company, as well as the company who shall be deemed to by guilty of the offence and shall be liable to be proceeded against and punished for having issued a cheque and as such, according to him, petitioner No. 2 could not have been issued summons by the court being not in any manner concerned with the issue of the cheque. It is also his contention that the cheque having been dishonoured for the first time on 19th November, 1991, the limitation will start to run from this date and any subsequent presentation to the bank and subsequent dishonour of the cheque by the bank will not given fresh period of limitation to the complaint to file the complaint.

(3.) MR. Khanna has also relied upon a judgment reported as Sham Sunder and Ors. a State of Haryana, J. T. 1983 (3) S. C. 522 to contend that it is only that person who is in charge of the affairs of the business of the company to whom summons can be issued.