Crl. Misc. No. M-14399 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : Crl. Misc. No. M-14399 of 2009 (O&M) Date of Decision : October 12, 2009 J. L. Kesarwani .... Petitioner Vs. Lajja Ram and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Chander Parkash, Advocate (from Delhi) with Mr. Shiv Kumar, Advocate for the petitioner. * * * L. N. MITTAL, J. (Oral) : Crl. Misc. No. 51433 of 2009 : Application is allowed and annexed supplementary submissions, affidavit and Annexure P-9 are taken on record, subject to all just exceptions. Main Case : J. L. Kesarwani has filed this petition under Section 482 of the Code of Criminal Procedure (in short – Cr.P.C.) for quashing order dated 23.04.2009 (Annexure P-2) passed by Additional Chief Judicial Magistrate, Faridabad in criminal complaint filed by Lajja Ram – respondent no.1 against M/s Becon Constructions Pvt. Ltd. and others and also for quashing Crl. Misc. No. M-14399 of 2009 (O&M) 2 the criminal complaint and all consequential proceedings arising therefrom. Respondent no.1 filed criminal complaint (Annexure P-1) against the following accused :- 1. M/s Becon Constructions Pvt. Ltd. Having its office at 303, Pankaj House Pocket, HLSC, Sarita Vihar, New Delhi – 110076 through it's Director/Principal Officer. 2. M/s Becon Constructions Pvt. Ltd. Having its office at 303, Pankaj House Pocket, HLSC, Sarita Vihar, New Delhi – 110076 through it's Director Mr. J. L. Kisarwani. 3. Pankaj Kumar Authorized Representative of M/s Becon Constructions Pvt. Ltd. Having its office at 303, Pankaj House Pocket, HLSC, Sarita Vihar, New Delhi – 110076. under Sections 138, 141 and 142 of the Negotiable Instruments Act, 1881 (in short – the Act) read with Section 420 of the Indian Penal Code (in short – IPC). Accused No.3 Pankaj Kumar filed application for his discharge in the complaint. The said application has been dismissed by learned Additional Chief Judicial Magistrate, Faridabad vide impugned order dated 23.04.2009 (Annexure P-2) and all the three accused arrayed in the complaint have been ordered to be served with notice of accusation for offence under Sections 138 and 142 of the Act. Allegations in the complaint are that accused no.1 – Company purchased land from the complainant and his two brothers. For sale consideration of the share of the complainant, two post-dated cheques were issued by accused no.1 through its Director accused no.2 (present petitioner) and authorized representative accused no.3. The complainant presented cheque for Rs.34,50,000/-, which was dishonoured with the remarks `payment stopped by the drawer'. Demand notice sent to the accused proved futile leading to the filing of the impugned complaint. I have heard learned counsel for the petitioner and perused the Crl. Misc. No. M-14399 of 2009 (O&M) 3 case file. Learned counsel for the petitioner contended that since the offence was allegedly committed by accused no.1 – Company, the petitioner could not be arrayed as accused unless the accused was alleged to be Incharge of and responsible to the Company for the conduct of its business, but in the instant case, there is no such averment, as is mandatory requirement of Section 141 of the Act. Reliance in support of this contention has been placed on a judgment of Hon'ble Apex Court in the case of Raj Kumar Khurana vs. State of (NCT of Delhi) and another – reported as 2009 INDLAW SC 587, wherein it was laid down that legal fiction has to be given effect to. I have carefully considered the aforesaid contention, but find no substance in it because respondent no.1 – complainant has made necessary averment to array the petitioner as accused. Paragraphs no.4, 5 and 9 of the impugned complaint (Annexure P-1) are reproduced herein :- “4. That for share of the complainant as per the term and condition of sale deed and after accepting the debit liability towards the complainant and to discharge the said liability the accused No.1 through its Director/accused No.2 and authorized representative/accused No.3 and both responsible and touching with the daily affairs of the business of the accused No.1 got issued the following two post dated cheque both drawn on Punjab and Sind Bank, Sarita Vihar, New Delhi as per the details given herein under :- Cheque Nos. Date Amount a) 210218 21.03.2007 5,25,000/- b) 210221 21.09.2007 34,50,000/- Crl. Misc. No. M-14399 of 2009 (O&M) 4 Total : Rs.39,75,000/- (Rupees Thirty Nine Lakh Seventy Five Thousand only). xx xx xx xx xx 5. That at the time of execution of the above said sale deed and the accused No.2 and 3 on behalf of accused No.1 further assured the complainant that the above said Cheque shall definitely honoured after the presentation and one cheque No.210218 dated 21.03.2007 of Rs.5,25,000/- was encashed by the complainant through its banker. xx xx xx xx xx 9. That the accused No.2 and 3 Director, in charge, Authorized representative and responsible to day-to-day conduct and business of accused No.1/Company the accused have mischievously, deliberately, intentionally and malafidely, to cheat the complainant and grab his land got issued the above said cheque and stopped the payment.” From the aforesaid averments, it is manifest that the complainant-respondent no.1 has made necessary averments against the petitioner alleging that he was responsible for day to day conduct of the business of accused no.1 – Company and was responsible for its affairs. In addition thereto, learned counsel for the petitioner himself stated that the Crl. Misc. No. M-14399 of 2009 (O&M) 5 impugned cheque was also signed by the petitioner. Consequently, it cannot be said that there is no sufficient averments against the petitioner to comply with the requirements of Section 141 of the Act. In view of the aforesaid, finding no merit in the instant petition, the same is accordingly dismissed. October 12, 2009 ( L. N. MITTAL ) monika JUDGE