Criminal Application No.2263 of 1998

28th February, 2003

Petitioner Counsel: Shri. K. V. SASTE
Respondent Counsel: Ms. M. SHARMA

JUDGMENT

JUDGMENT :- The applicant absent though notice has been sent to him informing him the date of the final hearing of this application. None appears for him. Mr. Saste for Respondent No.1. Ms. M. Sharma for Respondent No.2.

2. Shri. Saste justified the impugned order as correct, proper and legal. Ms. M. Sharma submitted that the applicant happens to be the Managing Director of the public limited company and he has signed the cheque. Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the Act for convenience) points out the specific cases where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine, etc. etc. Therefore, it is clear that any director or partner of a public or private limited company who has drawn the said cheque which has been dishonoured would be liable for punishment if his guilt is proved. So also, the director or partner of such partnership or public or private limited company who participates in the business or has the knowledge of drawing of such cheque would be liable for punishment. Hence, it would not be proper for any Court to dismiss a complaint at the threshold if there is a prima facie case made out in the complaint that the person who has been accused of commission of an offence punishable under section 138 of the Act has drawn that cheque which has been dishonoured or was having the knowledge of drawing of such cheque in his capacity as partner of the firm or a director of such company or who participates in the conducting of the business of such partnership or such company, cannot be discharged, cannot be exonerated by dismissing such complaint. Magistrate has to proceed with the case and has to examine the witnesses produced or requested to be summoned by the complainant by following the appropriate procedure laid down by the law.

3. Thus, the application stands dismissed. Stay stands vacated. Rule stands discharged.

Application dismissed.