KISHORI LAL Vs. PAWAN KUMAR

JUDGEMENT

(1.) THIS petition under Section 482 of the Code of Criminal procedure has been filed for a prayer for quashing a complaint filed under Section 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 compliant it is stated that there was some agreement dated 4.4.1990, and in pursuance of that agreement, nine post dated cheques totaling to amount of Rs. 8,50,000/- and a pay order dated 6.4.1990 for Rs. 30,000/- was given to the complainant in order to discharge liability arising under that agreement. The five cheques in question were presented by the complaint 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.

(2.) 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 accrued 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.

(3.) 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 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 under Section 482 Cr.P.C. in the complaint in all five accused are shown. Out of them present petitioners are accused No. 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 responsibility, 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 S. 141 of the Negotiable Instruments Act. At this juncture, it may be mentioned that the cheques in question have been singed 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 complaint, and on comparing it with the signatures appearing on the photostat copies of the cheques at Annexure R-9 to R-15. However, this compassion by me at this stage need not be considered as the one under Section 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 singed 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.