Devendra Singh Wallia vs State of U.P. and Others

S.C. Jain, J.—The Petitioner, Devendra Singh Wallia, issued a cheque dated 25.3.1992 for Rs. 29,000 in the name of Punjab and Sindh Bank and the said cheque was presented for collection but the same was returned with an endorsement of ''Insufficient balance'' vide memo dated 4.4.1992 received on 28.4.1992.

Thereafter a notice was given to the Petitioner, Devendra Singh Wallia, making a demand for payment of the said amount of cheque within 15 days and the same was replied by the Petitioner admitting the issuance of the said cheque in the name of Punjab & Sindh Bank, New Delhi and he prayed that some time may be given to him to make the payment. As the Petitioner failed to make the payment of the said amount within 15 days, a complaint was filed before the Chief Judicial Magistrate, Jhansi.

The learned Magistrate summoned the accused (Petitioner herein) u/s 138 of the Negotiable Instruments Act, 1881 vide his order dated 4.8.1992. Against the said order a revision was preferred before the Sessions Judge, Jhansi, which was dismissed by the 1st Addl. Sessions Judge by his order dated 19.8.1993. The learned Addl. Sessions Judge observed that the order of the learned Magistrate was correct, proper and legal.

Feeling aggrieved, this order of the learned 1st Addl. Sessions Judge, Jhansi passed on 19.8.1993 has been challenged by filing this writ petition.

The only submission made by the learned Counsel for the Petitioner is that u/s 141 of the Negotiable Instruments Act if the person committing an offence u/s 138 is a company, every person who. at the time the offence was committed, 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. According to the learned Counsel, in the explanation given in the aforesaid section company includes a firm. The learned Counsel for the Petitioner further submits that in the complaint it has not been mentioned that the Petitioner, Devendar Singh Wallia, was responsible to the company for the conduct of the business and in the absence of this specific allegation the complaint is liable to be set aside. He has relied upon a decision of a Single Judge of this Court in the case of Smt. Sharda Agarwal and Ors. v. Additional Chief Metropolitan Magistrate and Anr. reported in 1992 Allahabad Criminal Rulings (Volume XVI) page 25 in support of his contention that when there is no allegation in the complaint that the applicant/Petitioner was incharge of and responsible to the company for the conduct of the business of the company, the complaint cannot proceed against him.

I am afraid that I am not agreeable to the submissions made by the learned Counsel for the Petitioner in the present circumstances of the case. In this case cheque has been issued by the Petitioner, Devendra Singh Wallia in individual capacity and not as a partner of a firm as is apparent from the dishonoured cheque. In the complaint the firm has also not been made a party. The Petitioner may be a partner of the firm but he has issued the cheque individually and that in reply to the notice he has also not mentioned the name of firm but he has sent the reply on his behalf by showing his residential address and he had personally sought time to make its payment. The decision of this Court relied upon by the learned Counsel for the Petitioner does not help him in the present circumstances of the case. The provisions of Section 141 of the Negotiable Instruments Act are also not helpful to the Petitioner in the present circumstances of the case. I find no infirmity or illegality in the orders passed by the trial Court. In writ Jurisdiction disputed question of fact cannot be looked into and I do not interfere in this writ jurisdiction.

The writ petition is accordingly dismissed.

The stay order granted in this writ petition stands vacated.