VIJAY KUMAR Vs. RAKESH KUMAR

JUDGEMENT

(1.) THE petitioner herein in his capacity as authorized signatory of M/s. Century Vision Organic Farm Pvt. Ltd., Village Tadoli, Post Office Saru, Tehsil and District Chamba, H.P., issued a negotiable instrument in the sum of Rs. 78,000/ - to the complainant/respondent herein. The negotiable instrument of 30.12.2012 drawn on State Bank of Patiala, Chamba stands comprised in Ex. CW1/B. It was presented by the respondent herein/complainant for payment to State Bank of Patiala, Chamba on 21.03.2013 hence within six months from the date of its issuance. However, on its presentation by him to his banker aforesaid, it was returned to him with an endorsement comprised in Ex. CW1/E of there being insufficient funds in the account of M/s. Century Vision Organic Farm Pvt. Ltd. for purported defrayment of whose liability towards the respondent herein, the petitioner herein issued it to the respondent herein being its authorised signatory. In other words, the negotiable instrument Ex. CW1/B on its presentation before the State Bank of Patiala, Chamba, by the respondent herein stood dishonoured by the latter. The dishonour of negotiable instrument, Ex. CW1/B by the bankers of the respondent led the respondent herein to, within 30 days from the date of intimation purveyed to him by his bankers comprised in Ex. CW1/E qua for insufficient funds existing in the account of M/s. Century Vision Organic Farm Pvt. Ltd., having entailed the sequel of its being dishonoured, serve upon the petitioner a notice comprised in Ex. CW1/C, as he in his capacity as an authorised signatory of M/S Century Vision Organic Farms Pvt. Ltd., had issued to him Ex. CW1/B. Since the serving of notice Ex. CW1/C upon the petitioner herein by the complainant/respondent did not within 15 days of its receipt by the former sequel the eventuality of the petitioner herein defraying to the respondent/complainant the liability constituted in Ex. CW1/B, led the complainant/respondent herein to before the learned Judicial Magistrate 1st Class, Chamba institute a complaint against the petitioner herein under Section 138 of the Negotiable Instruments Act. On the learned Judicial Magistrate 1st Class, Chamba receiving the complaint took cognizance thereon and issued summons upon the petitioner herein constituted in Annexure P -4 warranting his appearance before it on 15.11.2013. However, Annexure P -4 as issued by the learned Judicial Magistrate 1st Class, Chamba calling upon the petitioner herein to appear before it on 15.11.2013 did not come to be served upon the petitioner herein. The learned Judicial Magistrate 1st Class, Chamba issued subsequent to the issuance of Annexure P -4, fresh summons for procuring the presence before it of the petitioner herein on 28.10.2014, which too did not come to be served upon the petitioner herein. However, the summons issued by the learned Judicial Magistrate 1st Class, Chamba for procuring the presence before it of the petitioner herein on 18.12.2014 came to be served upon the petitioner herein. In consequence to the summons aforesaid as issued by the Court of the learned Judicial Magistrate 1st Class, Chamba having come to be served upon the petitioner, the latter put in through his counsel his appearance before the Court aforesaid on 18.12.2014. With the petitioner on 18.12.2014 appearing through his counsel before the Court of the learned Judicial Magistrate 1st Class, Chamba, the latter Court on the complaint instituted against him by the respondent herein under Section 138 of the Negotiable Instruments Act commenced proceedings against the petitioner herein. With the Court of the learned Judicial Magistrate 1st Class, Chamba having initiated proceedings against the petitioner herein upon the complaint of the respondent/complainant instituted before it under Section 138 of the Negotiable Instruments Act, led the petitioner herein to institute before this Court the instant petition under Section 482 of the Code of Criminal Procedure with a prayer therein that the complaint instituted by the respondent herein before the Court of the learned Judicial Magistrate 1st Class, Chamba be quashed and set aside.

(2.) THE Negotiable instrument comprised in Annexure P -1 exhibited before the Court of learned Judicial Magistrate 1st Class, Chamba as Ex. CW1/B on whose presentation by the respondent herein before his bankers sequelled an endorsement from the latter comprised in Ex. CW1/E of there being insufficient funds in the account of M/s. Century Vision Organic Farm Pvt. Ltd., on whose behalf the petitioner herein as its authorised signatory had issued Ex. CW1/B. The petitioner herein while donning the capacity of his being the authorised signatory of M/s. Century Vision Organic Farms Pvt. Ltd., and in that capacity having issued Ex. CW1/B which stood dishonoured rendered him to stand encompassed within the domain, ambit and gamut of the provisions of Section 141 of the Negotiable Instruments Act, whose provisions are extracted hereinafter, especially with a contemplation existing therein of 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, besides also rendered him amenable to, as also, attracting its penal provisions to himself arising from dishonour of Ex. CW1/B which he while his being the authorised signatory of the aforesaid Pvt. Ltd. Company signatured it and issued it on its behalf to the respondent herein. Indubitably, further when the petitioner herein, signatured and issued the negotiable instrument constituted in Ex. CW1/B for withdrawal of the amount mentioned therein from the account maintained by M/s. Century Vision Organic Farm Pvt. Ltd., with State Bank of Patiala, Chamba for purported discharge of the former's liability towards the respondent herein, in his capacity as its authorised signatory, which however for insufficiency of funds in the account of M/s. Century Vision Organic Farm Pvt. Ltd., on whose behalf he issued it, as its authorized signatory stood dishonoured, as imminent from an endorsement of his bankers comprised in Ex. CW1/E and with the petitioner herein despite his having been served by the respondent herein with notice EX.CW1/C not having within the stipulated period therein defrayed to the respondent herein the amount comprised in Ex. CW1/B rendered himself amenable to besides, attracted to himself the penal provisions engrafted in Section 138 of the Negotiable Instruments Act. However, the inculpatory besides the criminal liability of the petitioner herein arising from the dishonour of the negotiable instrument while his having signatured it, in his capacity as the authorised signatory of M/s. Century Vision Organic Farms Pvt. Ltd., was not his sole liability rather was a vicarious criminal liability along with M/s. Century Vision Organic Farms Pvt. Ltd. Company for discharging whose liability towards the respondent herein, he being its authorised signatory issued Ex. CW1/B for withdrawal by the respondent from the account of M/s. Century Vision Organic Farm Pvt. Ltd., maintained in the State Bank of Patiala, Chamba, the sum comprised in Ex. CW1/B. The provisions of Section 141 of the Negotiable Instruments Act read as under: - -

(3.) IN aftermath, the non impleadment of M/s. Century Vision Organic Farm Pvt. Ltd. as an accused by the respondent herein in his complaint has rendered the complaint to be not maintainable nor hence its non impleadment could attract the vicarious criminal liability of the petitioner herein with that of the company, the principal offender on whose behalf he as its authorised signatory, issued to the respondent Ex. CW1/B. More so, when it was the duty of the company, the holder of the account wherefrom the withdrawal of the amount comprised in Ex. CW1/B was to occur to ensure that its account held or maintained in the bank concerned carried funds sufficient and adequate for necessitating the honouring of Ex. CW1/B. In other words, it having derelicted from its enjoined duty to ensure the occurrence of adequate and sufficient funds in its account has constituted itself to be the principal offender whereas with the petitioner herein while his being its authorised signatory, besides not the holder of the account wherefrom the amount comprised in Ex. CW1/B was to be withdrawn was only vicariously criminally liable along with it. In coming to the above conclusion, I am supported by a judgment of the Hon'ble Apex Court reported in Aneeta Hada versus Godfather Travels and Tours Private Limited, : (2012)5 SCC 661, the relevant paragraphs No. 58 whereof reads as under: - -