JAGDISH PRASAD LATH Vs. UCO BANK

JUDGEMENT

(1.) OPPOSITE party No.1 filed a complaint vide ICC No. 50 of 2003 in the Court of the learned S.D.J.M., Sambalpur alleging offences under Section 138 of the Negotiable Instruments Act, (hereinafter to be called as "the Act", in short) against opposite party No.2 and the petitioner. The learned S.D.J.M. after perusing the statement of the complainant and the documents produced during inquiry under Section 202, Cr.P.C. took cognizance of the offence under Section 138 of the Act and directed issue of process only against the petitioner. Aggrieved, the petitioner has filed the present petitioner under Section 482, Cr.P.C. for quashing the order of cognizance dated 5.9.2003 passed by the learned S.D.J.M., Sambalpur.

(2.) LEARNED counsel for the petitioner submits that the order of cognizance against the petitioner is misconceived as there is no material to show that the petitioner was in -charge of conduct of business and the management of opposite party No.2. According to him, cognizance cannot be taken against a person unless there is specific pleading in the complaint petition that the said person was in -charge of conduct of business of the company and that he was responsible for bouncing of the cheque in question. In support of this contention, the decisions in the cases of S.N. Bangur and others v. M/s. Klen and Marshalls Mrfs. And Exporters Pvt.Ltd., Chennai (2002 CRI.L.J., 4155), Mrs. Sonia Bhalla and others v. Rajneesh Aggarwal and others (2002 Cri.L.J., 3053), Dr. O.P. Mehra v. M/s. Manasi Finance (Chennai) Ltd. (2002 Cri.L.J., 1310) and Monaben Ketanbhai Shah and another v. State of Gujarat and others (2004) 29 OCR (SC) 149) were cited.

(3.) BEFORE examining the contentions of the parties, it will be beneficial to quote Section 141 of the Negotiable Instruments Act, which deals with offences by companies. Section 141 of the said Act reads thus : "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. (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". The Section therefore, contemplates that if the offence under Section 138 of the Act is alleged to have been committed by a company, then the person -in -charge and responsible for the conduct of the business of the Company shall be liable for prosecution on behalf of the Company. The Section also provides an exception which says that such person -in -charge of the company shall not be liable under Section 138 of the Act if he proves that offence was committed without his knowledge or that he has exercised all due diligence to prevail the commission of such offence.