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2019 (11) TMI 1761
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....y Addl. Sessions Judge, Court No.7, Muzaffarnagar in Criminal Revision No.212 of 2013, Devendra Kumar Garg Vs. Pawan Kumar Goel and summoning order dated 18.3.2013 passed by Addl. Chief Judicial Magistrate, Court No.2, Muzaffarnagar in Criminal Case No.162 of 2013, Pawan Kumar Goel Vs. Devendra Kumar Garg. It has been contended by the learned counsel for the petitioner that four criminal complaints were filed by opposite party no.2 against the petitioner under Section 138 of Negotiable Instrument Act and one of the criminal case no.162 of 2013 Pawan Kumar Goel Vs. Devendra Kumar Garg was challenged by the petitioner in this Writ Petition in which interim order has been granted in his favour vide order dated 13.12.2013 by another Bench of t....
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....on. The counsel for the petitioner has submitted that the company has not been made the party as an accused in the case in question as held by the Hon'ble Supreme Court in the case of Aneeta Hada Vs. Godfathere Travels and Tours Private Limited, (2012) 5 SCC 661, the impugned summoning order is erroneous. Learned counsel for the petitioner contended that in a catena of decisions the Apex Court has repeatedly held that if complaint under section 138 N.I.Act is filed in respect of dishonour of cheque issued from the account of company, it is incumbent on the part of complainant to make necessary averments in complaint at the time offence was committed. the person accused was In charge of and responsible for the conduct and business of t....
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.... person in charge of and responsible to the company for conduct of the business of the company at the time of commission of the offence shall be deemed to be guilty of offence. The Hon'ble Apex Court has discussed the provisions of Section 138 along with Section 141 of the Act which deals with the offence committed by a company. Hon'ble Apex Court has held that for maintaining the prosecution under Section 141 of the Act, arraying of a company as an accused is imperative. The Hon'ble Apex Court in its verdict S.M.S.Pharmaceuticals Ltd. Vs. Neeta Bhalla & another (supra) has held that necessary averments ought to be contained in a complaint before a person is subjected to criminal process. A liability under Section 141 of the Ac....
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....ney standing to the credit of that 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 be extended to two years] or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course....
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....al Government or the State Government, as the case may be, he shall not be liable tor prosecution under this Chapter. (2) Notwithstanding anything contained in sub-section, 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 the association of ind....
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....d, has not been made party in the complaint as stated above and side by side the necessary averment required to be made in the complaint satisfying the requirements of Section 141 of the Act are also lacking to maintain prosecution as held in the decisions cited above. In this view of the matter, complaint itself is bad in law and the entire proceedings in pursuance thereof, including the summoning order dated 18.3.2013 passed by Addl. Chief Judicial Magistrate, Court No.2, Muzaffar Nagar in Criminal Case No.162 of 2013, Pawan Kumar Goel Vs. Devendra Kumar Garg, under Section 138 N.I. Act, P.S. Civil Lines, District Muzaffar Nagar as well as order dated 2.12.2013 passed by Addl. Sessions Judge, Court No.7, Muzaffarnagar in Criminal Revision....