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2022 (6) TMI 1130
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....ed-Rishi Rana (hereinafter, 'accused'), alleging therein that the above named accused approached him in the month of March, 2016, seeking loan of Rs. 5.00 Lakh for his domestic use. Complainant, who had cordial relations with the accused, advanced Rs. 5.00 Lakh in the month of March, 2016 with the understanding that the same shall be returned by the accused within a period of one month. Since the accused failed to make payment in the month of April, 2016, he issued cheque bearing No. 063983 dated 25.4.2016 to the complainant for a sum of Rs. 5.00 Lakh drawn at Punjab National Bank Sultanpur, Chamba, against saving bank account No. 7893002100000314. However, the fact remains that the said cheque on its presentation was dishonoured on account of insufficient funds. Since despite issuance of legal notice, accused Rishi Rana failed to make the payment, complainant instituted proceedings under S.138 of the Act in the court of learned Chief Judicial Magistrate, Chamba. 3. After recording of evidence in the case, complainant preferred an application under S.319 CrPC, (Annexure P-4), praying therein to array petitioners herein as an accused on the ground that the cheque in question was al....
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.... 138 of the Act as well as application under S.319 CrPC, vehemently argued that at no point of time, allegation if any ,ever came to be leveled against the petitioners that the loan of Rs. 5.00 Lakh was advanced to them, rather, there is a precise allegation in the complaint that respondent /complainant lent Rs. 5.00 Lakh in the month of March, 2016 to respondent No.2 /accused Rishi Rana for his domestic use and as such, there is no liability, if any, of theirs. He further argued that it is not the case of the complainant that the money was lent to the firm and as such, petitioners herein being partners in the firm, issued notice and as such, petitioners cannot be held liable for action if any, of one of the partners i.e. respondent No.2 Rishi Rana, who had raised personal loan. Above named counsel further argued that since at no point of time, legal notice, if any, ever came to be issued against the petitioners before initiation of proceedings under S.138 of the Act, complaint, if any, qua them otherwise is not maintainable. 7. To substantiate aforesaid submission learned counsel for the petitioners invited attention of this Court on a judgment of Hon'ble Apex Court in Ashoke....
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.... summoning an accused under Section 138 of the Act, the Magistrate is expected to examine the nature of allegations made in the complaint and the evidence both oral and documentary. It is necessary for Courts to ensure strict compliance of the statutory requirements as well as settled principles of law before making a person vicariously liable. To fasten vicarious liability under S.141 of the Act on a person, law is well settled that the complainant should specifically show as to how and in what manner, accused was responsible. 12. Hon'ble Apex Court in Dilip Hariramani v. Bank of Baroda, Cr. Appeal No. 767 of 2022, decided on 9.5.2022, has held as under: "10. We would also refer to the summarisation of law on Section 141 by this Court in National Small Industries Corporation Limited v. Harmeet Singh Paintal and Another,10 to the following effect: 10 (2010) 3 SCC 330: The case dealt with challenge to a summoning order. Withal, interference by the courts at the stage of summoning order is restricted/limited. "39. From the above discussion, the following principles emerge: (i) The primary responsibility is on the complainant to make specific averments as are required under....
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.... Debts Due to Banks and Financial Institutions Act, 1993 and the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. However, vicarious liability in the criminal law in terms of Section 141of the NI Act cannot be fastened because of the civil liability. Vicarious liability under sub-section (1) to Section 141 of the NI Act can be pinned when the person is in overall control of the day- to-day business of the company or firm. Vicarious liability under sub-section (2) to Section 141 of the NI Act can arise because of 11 (1971) 3 SCC 189 12 State of Karnataka v. Pratap Chand and Others, (1981) 2 SCC 335. the director, manager, secretary, or other officer's personal conduct, functional or transactional role, notwithstanding that the person was not in overall control of the day-today business of the company when the offence was committed. Vicarious liability under sub-section (2) is attracted when the offence is committed with the consent, connivance, or is attributable to the neglect on the part of a director, manager, secretary, or other officer of the company." 13. Interestingly in the case at hand, there is no allegation worth t....
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....working of the Company and the name of appellant was not therein. Indisputably, therefore, the cheques bounced on 24-08-2006 due to insufficient funds were neither issued by the appellant nor the appellant was involved in the day to day affairs of the Company. 13. Before summoning an accused under Section 138 of the Act, the Magistrate is expected to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and then to proceed further with proper application of mind to the legal principles on the issue. Impliedly, it is necessary for Courts to ensure strict compliance of the statutory requirements as well as settled principles of law before making a person vicariously liable. 14. The Superior Courts should maintain purity in the administration of Justice and should not allow abuse of the process of Court. Looking at the facts of the present case in the light of settled principles of law, we are of the view that this is a fit case for quashing the complaint. The High Court ought to have allowed the criminal miscellaneous application of the appellant because of the absence of clear particulars about role of the appellant....