Application U/S 482 No.3603 of 2019

20th February, 2019.

Petitioner Counsel: SANTOSH YADAV

Cases Cited:
Indus Airways Pvt. Ltd. and others Vs. Magnum Aviation Pvt. Ltd. and others, 2014 ALL MR (Cri) 1948 (S.C.)=2014(2) ACR 1347 [Para 3,10]
Aneeta Hada Vs. Godfather Travels & Tours Pvt. Ltd., 2012 ALL SCR 1424=(2012)3 SCC (CRI) 241 [Para 3,6]
Electronics Trade and Technology Development Corpn. Ltd. Vs. Indian Technologists and Engineers (Electronics) Pvt. Ltd., 1997 ALL MR (Cri) 1027 (S.C.)=AIR 1996 SC 2339 [Para 9]
Modi Cements Ltd. Vs. Kuchil Kumar Nandi, 1998(2) ALL MR 433 (S.C.)=AIR 1998 SC 1057 [Para 9]
M.M.T.C. Ltd. Vs. Medehl Chemicals and Pharma (P) Ltd., 2002 ALL MR (Cri) 230 (S.C.)=AIR 2002 SC 182 [Para 9]

JUDGMENT

Om Prakash-VII, J. :- Heard Sri Santosh Yadav, learned counsel for the applicant and learned AGA for the State.

2. Present application u/s 482 Cr.P.C. has been filed by the applicant with the prayer to quash the summoning order dated 19.08.2017 passed in Complaint Case No. 2380 of 2017 passed by Additional Chief Judicial Magistrate, Court No. 8, Allahabad (Shailendra Kumar Dubey Vs. Dharmendra Kumar Sharma), under Section 138 Negotiable Instruments Act, Police Station Dhoomanganj, District Allahabad, pending before Special Judge N.I. Act, Court No. 2, Allahabad.

3. It is submitted by learned counsel for the applicant that summoning order passed in the matter is illegal. There was no existing debt or liability to issue the cheques in question. In fact cheques in question were post dated cheque. Information was also given to the Bank for stop payment. Thus, provision of Section 138 Negotiable Instruments Act is not applicable in the present matter. It is further submitted that cheques in question are issued on behalf of firm but the firm has not been arranged as an accused in the complaint. Thus, complaint was also not maintainable. Until and unless, firm is prosecuted, proprietor or director of the firm or company could not be prosecuted. It is also submitted that summoning order is passed without applying judicial mind. At this juncture, learned counsel for the applicant also placed reliance on the following case law in Indus Airways Pvt. Ltd. and others Vs. Magnum Aviation Pvt. Ltd. and others, 2014(2) ACR 1347 : [2014 ALL MR (Cri) 1948 (S.C.)] and Aneeta Hada Vs. Godfather Travels & Tours Pvt. Ltd., (2012)3 SCC (CRI) 241 : [2012 ALL SCR 1424].

4. On the other hand, learned AGA opposed the prayer and argued that although in the complaint specifically the firm has not been arraigned as separate party but the name of the parties through the firm has been clearly mentioned in the complaint. It is further submitted that as soon as liability came into existence for payment of the amount of post dated cheque, provisions of Section 138 Negotiable Instruments Act comes into play. Summoning order passed in the matter is not illegal. It is further submitted that merely sending of information regarding the stop payment is not sufficient to absolve from the liability under Section 138 Negotiable Instruments Act.

5. I have considered the rival submissions and have gone through the entire record.

6. In this matter, learned counsel for the applicant has raised argument on many counts. First submission is that cheques in question are said to have been issued on behalf of a firm but the firm has not been arraigned as an accused separately. Therefore, summoning order passed in the matter against the applicant is illegal. If the submission raised by learned counsel for the applicant is taken into consideration in the light of the ratio laid down in Aneeta Hada case [2012 ALL SCR 1424] (supra), it is clear from the record that present complaint was filed against the applicant showing his capacity as sole proprietor of the M/s Aditya Power Group.

7. Section 141 of Negotiable Instruments Act runs as follows:-

"(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:

[Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter.]

(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.

Explanation.- For the purposes of this section,-

(a) "company" means any body corporate and includes a firm or other association of individuals; and

(b) "director", in relation to a firm, means a partner in the firm."

8. In the present matter, if the settled position of law as quoted here-in-above are taken into consideration, M/s Aditya Power Group of which present applicant is proprietor is not a company nor it is a partnership firm. If such is the position and complaint is filed only arraying applicant as an accused in the capacity of sole proprietor of M/s Aditya Power Group, the summoning order passed in the matter for the offence under Section 138 Negotiable Instruments Act cannot be termed to be illegal. M/s Aditya Power Group is sole proprietorship entity and not a company or firm in terms of provision of Section 141 Negotiable Instruments Act. Thus, prayer made by learned counsel for the applicant in this respect is not acceptable.

9. As far as information given by the applicant to the Bank concerned regarding stop payment is concerned, there is no denial that cheques in question belong to the applicant. Signature upon cheques in question have also not been denied. Then, merely on this basis that information had been sent to the Bank concerned by the applicant for stop payment, will not be sufficient to accept the submission raised by learned counsel for the applicant. After issuance of cheque against an existing liability, if drawer of the cheques in question sent information to the Bank for stop payment, this fact itself reflect the dishonest intention of the drawer to attract the liability for which cheques in question have been issued. Further, it is settled that proceeding of a complaint on the ground of information sent by the applicant to the Bank to stop the payment cannot be quashed. Once the cheque is issued by the drawer, a presumption under Section 139 of the Act must follow. Merely because drawer issued notice to the drawee or to Bank for stoppage of payment, it will not preclude an action under Section 138 of the Act by drawee or holder of cheque in due course. The Hon'ble Supreme Court in the cases of Electronics Trade and Technology Development Corpn. Ltd. V. Indian Technologists and Engineers (Electronics) Pvt. Ltd., AIR 1996 SC 2339 : [1997 ALL MR (Cri) 1027 (S.C.)], Modi Cements Ltd. v. Kuchil Kumar Nandi, AIR 1998 SC 1057 : [1998(2) ALL MR 433 (S.C.)] and M.M.T.C. Ltd. vs. Medehl Chemicals and Pharma (P) Ltd., AIR 2002 SC 182 : [2002 ALL MR (Cri) 230 (S.C.)] has expressed the same view.

10. As far as existence of the debt or liability on the date of issuance of cheques in question as well as issuance of post dated cheques are concerned, in the present matter both the parties entered into an agreement to perform contract. Opposite party no. 2 fulfilled his part, as would be clear from the complaint itself, thereafter, in lieu of the work performed by the opposite party no. 2, amount of the cheques in question became due against the applicant for which cheques in question had been issued. The applicant does not get any help in this matter with the law laid down in Indus Airways Pvt. Ltd. case [2014 ALL MR (Cri) 1948 (S.C.)] (supra) as the facts of the present matter are entirely different with the facts of Indus Airways Pvt. Ltd. case [2014 ALL MR (Cri) 1948 (S.C.)] (supra).

11. After close scrutiny of entire evidence, it is evident that on dishonor of the cheques, legal notice was sent to the applicant by the opposite party no. 2 at his correct address, which was served upon him but no payment was made within the period provided under the Negotiable Instruments Act. Complaint was filed after the expiry of the fifteen days period for making payment good. Thus, complaint filed on 16.05.2017 in no way was defective / delayed. Summoning order passed in the matter is also based on correct appreciation of facts, evidence and law. Prayer made in the application for the reasons discussed here-in-above is not liable to be allowed and same is refused.

12. Faced with this situation, learned counsel for the applicant urged that a direction may be issued to the court below for expeditious disposal of bail application of the applicant.

13. Hence, it is directed that in case the applicant surrenders before the court below and applies for bail within thirty days from today, the same shall be considered and decided in view of the settled law. For a period of thirty days from today, no coercive action shall be taken against the applicant.

14. It is made clear that no further time shall be allowed to the applicant to surrender before the court concerned.

15. With the above observations, the application stands disposed of.

Application dismissed.