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Judgment
K.K. Srivastava, J.—This is a petition filed u/s 482 Cr. P.C. praying for quashing of criminal complaint (copy Annexure PI) pending in the Court of the Chief Judicial Magistrate, Bathinda, filed by respondent No. 2, M/s Chand Traders u/s 138 of the negotiable Instruments Act 1881.
The facts leading to the filing of the impugned complaint may briefly be noticed as under:-
The complainant firm, M/s Chand Traders, Nai Basti, Bathinda is the sole proprietor firm of Shri Chand Kumar Ahuja, carrying on the business of cotton merchants at Bathinda. M/s Shivalik Fibers Private Limited/petitioner No. 1 is carrying on business at its registered office at A-3/141, Janakpuri, New Delhi, administrative office of which is at Ludhiana and works site at Nalagarh, district Solan, Himachal Pradesh. Shri H.D.. Bhalla is the Managing Director of petitioner No. 1 firm, while Shri Vivek Bhalla and Vishal Bhalla are its directors, who are responsible for all the conduct and affairs of the company as also all the liabilities incurred thereto. M/s. Shivalik Fibers/petitioner No. 1 had been purchasing cotton from the complainant firm and the business dealings were being carried on under the terms of the agreement between the complainant firm and the petitioner No. 1 firm. An account was settled regarding the business dealings of the parties on 25.3.1997 when a debit balance of Rs. 59844.33 was struck in the account of the accused No. 1 firm. Accused No. 3, namely Vivek Bhalla (non-petitioner) had issued a cheque No. PXR 218664 dated 25.3,1997 for a sum of Rs.59.844.33 in favour of the complainant-firm to be drawn on Punjab National Bank, Bathinda in due discharge of the liability. The other accused No. 2 and 4 were also acquainted of the facts of the cheque in due discharge of the liability of the firm and they are collectively responsible for discharging the liability of the petitioner. The said cheque was presented by the complainant on 7.4,1997 to its banker, State Bank of Bikaner and Jaipur Branch Bathinda on the same day but it was returned with the remarks, "Insufficient Funds" As required u/s 138 of the Negotiable Instruments Act, the complainant sent a registered notice dated 8.4.1997, which was duly served on and received by the accused persons on 10.4.1997. It was alleged that despite issuance of notice aforesaid, the accused persons failed to discharge the liability by paying the amount of the bounced cheque within 15 days. Hence the complaint was filed.
The petitioners, excluding Shri Vivek Bhalla, Director, under whose signatures the disputed cheque was issued in favour of the complainant-company, seek the quashing of the impugned complaint and the subsequent proceedings arising therefrom on the ground that the petitioner No. 1, M/s. Shivalik Fibers Pvt. Ltd. has already filed three complaint cases u/s 138 of the Negotiable Instruments Act against respondent No.2/firm (complainant of the impugned complaint), which arc pending in the courts at Ludhiana and axe detailed as under :-
(1) Complaint Case No.67/2 of 17.4.1997, relating to cheque No. 166107 dated 31.8.1994, revalidated on 31.3.1997 for Rs.25,000/-.
(2) Complaint case No.95/2 of 17.4.1997, with regard to dishonour of cheque No. 166109 dated 31.10.1994, revalidated on 31.3.1994 for Rs. 25,000/-.
(3) Complaint case No. 141/1 of 18.11.1997 with regard to dishonour of 5 cheques, i.e.
(i) Cheque No. 166110 dated 20.11.1994 revalidated on 30.4.1997 for Rs.25.000/-
(ii) cheque No. 166111 dated 31.12.1994 revalidated on 30.5.1997 for Rs.25,000/-.
(iii) Cheque No. 166112 dated 31.1.1995 revalidated on 30.6.1997 for Rs.25,000/-.
(iv) Cheque No. 166113 dated 28.2.1995 revalidated on 30.7.1997 Rs.25.000/- and
(v) Cheque No. 166114 dated 3l.3.1995 revalidated on 30.8.97 for Rs. 25,000/-.
All these cheques right from No. 166107 to 166114 were issued by respondent, No. 2 firm, the complainant.
It has been urged that in this background, it seems quite absurd and totally un-comprehendible that when respondent No.2 firm owed the petitioners a sum of over Rs.2 lacs, then why Mr. Vivek Bhalla should issue a cheque to the respondent No.2 firm for Rs.59844.33. It was also mentioned that apart from the amount of Rs. Two lacs outstanding and payable to the petitioner firm, a sum of Rs.7,79,108/- as principal and interest on delayed payments is owed by respondent No.2 firm to the petitioner firm, as per admitted settled dated 30.9.1993. Respondent No.2 is alleged to be habitual defaulter and it is contended that earlier also many cheques of respondent No.2 had been dishonored.
The other grounds on the basis of which the impugned complaint is sought to be quashed, included the non-service of notice u/s 138-B of the Negotiable Instruments Act on the petitioners. Shri Vivek Bhalla, who is said to have issued the disputed cheque, has already appeared before the trial court. No specific allegations have been made in the impugned complaint against the petitioner Shri H.D. Bhalla and Shri Vishal Bhalla.
Notice was issued to the respondents. The complainant firm put in appearance through Shri Rajiv Kataria Advocate and filed written reply contending, inter alia, that the petitioners have raised disputed questions of facts in this petition u/s 482 Cr. P.C. and this Court will not interfere in the disputed questions of fact in exercise of its inherent powers u/s 482 Cr. P.C. The petitioners, it was contended, were guilty of misstating the facts and the petition was liable to be dismissed on that ground as well. The petitioners have an ample opportunity of raising these pleas before the learned Judicial Magistrate, as has been held by the Hon''ble Supreme Court in K.M. Mathew Vs. State of Kerala and another, . It has been contended that a bare perusal of the proviso (b) of Section 138 of the Negotiable Instruments Act, which provides as under:-
(B) Criminal Procedure Code, 1973,-Section 219 : Negotiable Instruments Act, Section 138 - A specified amount of loan due from accused - Accused making payment by issuing 10 post-dated cheques of different dates - Cheques not honored by Bank-Held, it was one transaction - One complaint in respect of all cheques maintainable -Section 219 Cr. P.C. will not apply in peculiar facts of the case 1994(1) RCR 3 relied.
will show that notice is required to be issued to the drawer regarding the bouncing of the cheque. In the instant case the cheque was issued by Shri Vivek Bhalla. Director of the Company and under the aforesaid provisions, notice was issued to the said Director, who had issued the disputed cheque. It was urged that there was no necessity to issue similar notice to all the directors.
Shri S.S. Randhawa, learned DAG put in appearance for the State of Punjab/ respondent No. 1 and since the State was a proforma party, no written reply was filed on behalf of respondent No. 1
I have heard learned counsel for the petitioners and learned counsel for the respondent/complainant.
It is evident from the averments made in the petition that the very fact of issuance of disputed cheque by Shri Vivek Bhalla, Director of the petitioner No. 1 -firm, which is alleged to have been bounced, is seriously disputed as a fact. The whole question regarding the maintenance of the proceedings against the petitioner No. 1 -firm and its Managing Director Shri H.D. Bhalla and Directors Vivek Bhalla and Vishal Bhalla is dependent upon the proof of the fact that Shri Vivek Bhalla had issued, as Director of petitioner No. 1, the disputed cheque in favour of respondent No.2/complainant. This disputed question of fact cannot adequately and appropriately be dealt with by this Court in exercise of inherent powers and at this stage and more particularly in the absence of Shri Vivek Bhalla, Director aforesaid, who had issued the disputed cheque. No valid and cogent reasons have been given in the petition as to why Shri Vivek Bhalla had not joined the petitioners in this petition, seeking quashing of the impugned complaint, the impugned order of summoning and the subsequent proceedings arising therefrom.
On the other hand, it was mentioned in ground No.(iii) of the petition that Shri Vivek Bhalla has already been summoned and has appeared before the trial court at Bathinda and the impugned cheque is stated to have been issued by him (Shri Vivek Bhalla). If Shri Vivek Bhalla had not issued the cheque in question, there was no reason for his joining the petition in seeking the quashing of the impugned complaint. Moreover, this Court will not in exercise of its inherent powers u/s 482 Cr. P.C. settle the factual controversy regarding the genuineness of the cheque in question issued by Shri Vivek Bhalla in favour of respondent No.2, complainant. This aspect of the case can be adequately and appropriately be settled only by the trial court dealing with the impugned complaint when both sides lead evidence regarding the issuance of the disputed cheque and bouncing thereof when presented to the bankers by the complainant. Learned counsel for respondent No.2 has relied upon the judgment of a Single Bench of this Court in case titled Anita v, Anil K. Mehara, 1996 (1) RCR 257, holding that perusal of Section 138 of the Negotiable Instruments Act, 1881 (As Amended) leaves no doubt that the required notice had been issued to the drawer of the said cheque. It is not to requirement of law that the said notice must be sent to each of the partners. The drawer was the firm and only one of the partners may act on behalf of it. Once the notice Was issued to the drawer, it would be compliance of Section 13.8 of the Negotiable Instruments Act, 1881. It was further held that a perusal of Section 141 of the Negotiable Instruments Act, 1881 which reads us under:-
Offences by Companies - (1) If the person committing an offence u/s 138 is a company, every person, who at the time of offence was committed, was incharge 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.
(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 purpose of this section:-
(a) "company" means any body corporate and includes a firm or other association of individuals; and
(b) "director", in relation in a firm means a partner in the firm.
reveals that for the purpose of Section 141 aforesaid the expression ''company'' also includes a firm or other association of individuals. Therefore, the partnership firm would be included therein.
Learned counsel for the petitioner, on the other hand, relied upon a judgment of this Court in Harbhajan Singh Kalra v. State of Haryana and Another, 1992(1) RCR 169. In the said case, no notice was issued to Harbhajan Singh petitioner calling upon him to pay the amount of dishonored cheque and a notice was issued simply in the name of the accused company, M/s Orian Auto and Steel Industries Pvt. Ltd., which was not arrayed as accused in the complaint. It was observed as under:-
Thus, by no stretch of imagination it can be said that the notice pinning down criminal liability of the company would be deemed to be notice to the directors, i.e. the accused. Issuing of the notice to Directors of the company was required as the Director may have in order to avoid their/his criminal prosecution made payment of the dishonored cheque from the private source.
The matter does not rest here as all these three cheques were not issued by Harbhajan Singh petitioner but by Shri T.P.S. Kalra another director of that Company, Apparently, it cannot be said that the petitioner was incharge of the conduct of the business of the company.
Coming to the facts of the instant case, it will be seen that the impugned complaint specifically made'' an averment regarding Shri H.D. Bhalla, Managing Director of petitioner No. 1-firm controlling and conducting the business and Shri Vishal Bhalla being the Director of the firm. In para 2 of the impugned complaint, it was specifically mentioned as under:-
that the accused persons are carrying on their business under the name and style of M/s Shivalik Fibers Pvt. Ltd. and having its registered office at A-2/141 Janakpuri, New Delhi and administrative office at Ludhiana and works site at Nalagarh, District Solan (H.R) and as such the business of accused No. l company is being conducted, controlled and supervised by accused No. 2 to 4 i.e. Sh. H.D. Bhalla, Managing Director, Vivek Bhalla and Vishal Bhalla Directors who arc responsible for all the conduct and affairs of the company and all liabilities incurred thereto.
In para 4 of the complaint, it was specifically mentioned that the other accused No.2 to 4 were also acquainted with the facts of the said cheque being issued to the complainant and they had sufficient knowledge that the said cheque has been issued in discharge of liability as occurred to them collectively and as such all the accused are responsible for the same. The facts of the present case are clearly distinguishable from the facts in Harbhajan Singh Kalra''s case (supra).
In view of the foregoing discussion, the impugned complaint against the petitioners cannot be thrown at this stage being not maintainable. The petitioners, however, shall be at liberty to raise in the pleas, which have been sought to be raised in the present petition, before the trial court at the appropriate stage. Resultantly, the petition is dismissed.