Crl. Misc. No.M-3539 of 2008 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Misc. No. M-3539 of 2008 Date of Decision: 6 - 10 - 2010 Smt.Sunita Khanna and another .....Petitioners v. Sh.Vikas Mehta and another .....Respondents CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Ms.Rajwinder Kaur, Advocate for the petitioners. Mr.Mukul Aggarwal, Advocate for respondent No.1. None for respondent No.2. *** KANWALJIT SINGH AHLUWALIA, J. (ORAL) The present petition has been filed under Section 482 Cr.P.C. by Sunita Khanna wife of Raman Khanna and Saurabh Khanna son of Raman Khanna praying for quashing of complaint filed by respondent No.1 under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter to be referred as, `the Act') pending in the Court of Chief Judicial Magistrate, Amritsar, along with all subsequent proceedings, as well as summoning order dated 12.4.2006, Annexure P2, whereby the petitioners were summoned to stand trial. They also pray that the order dated 14.11.2007, Annexure P5, whereby the application filed by them for discharge was Crl. Misc. No.M-3539 of 2008 [2] dismissed, be also set aside. A perusal of the complaint reveals that Raman Khanna, husband of petitioner No.1 and father of petitioner No.2 had issued cheque No.082406 dated 27.2.2006 for Rs.4,00,000/- in favour of complainant- respondent No.1 from the cheque book issued in his favour by ICICI Bank, Ludhiana but the same bounced. In para 7 of the complaint, it is stated that the impugned cheque was issued by respondent No.2 – Raman Khanna. However, the petitioners-accused being principal officers of the business, are jointly liable for commission of offence committed by them. Counsel for the petitioners has stated that petitioners had neither issued the cheque nor they were running the alleged business of Raman Khanna. They have been implicated because they are wife and son of the person, who had issued the cheque. Counsel for respondent No.1 has stated that Raman Khanna – respondent No.2, husband of petitioner No.1 and father of respondent No.2 is absconding and now the business is being managed by Saurabh Khanna- petitioner No.2. Counsel for the respondent is unable to explain as to whether the business run by respondent No.2 was joint and it was a partnership firm or a company. Counsel has only referred to para 7 of the complaint, in which the following averments have been made:- “7. That although the impugned cheque was issued by accused no.1 only but the same was issued for and on behalf of all the accused and the same was issued towards discharge of the outstanding liability of all the accused who are principal officers of their joint business which they are carrying on for sending the people abroad and as such, all the accused who are principal officers of their business are jointly liable to face penal consequences for the commission of offences committed Crl. Misc. No.M-3539 of 2008 [3] by them to the complainant.” Hon'ble Apex Court in K.K.Ahuja v. V.K.Vora and Another, 2009(3) R.C.R. (Criminal) 571 has summed up the position under Section 141 of the Act, which reads as under:- “.......(i) If the accused is the Managing Director or a Joint Managing Director, it is not necessary to make an averment in the complaint that he is in charge of, and is responsible to the company, for the conduct of the business of the company. It is sufficient if an averment is made that the accused was the Managing Director or Joint Managing Director at the relevant time. This is because the prefix "Managing" to the word "Director" makes it clear that they were in charge of and are responsible to the company, for the conduct of the business of the company. (ii) In the case of a Director or an officer of the company who signed the cheque on behalf of the company, there is no need to make a specific averment that he was in charge of and was responsible to the company, for the conduct of the business of the company or make any specific allegation about consent, connivance or negligence. The very fact that the dishonoured cheque was signed by him on behalf of the company, would give rise to responsibility under sub-section (2) of Section 141. (iii) In the case of a Director, secretary or manager [as defined in Section 2(24) of the Companies Act] or a person referred to in clauses (e) and (f) of Section 5 of the Companies Act, an averment in the complaint that he was in charge of, and was responsible to the company, for the conduct of the business of the company is necessary to bring the case under Section 141 (1) of the Act. No further averment would be necessary in the complaint, though some particulars will be desirable. They can also be made liable under Section 141(2) by making necessary averments relating to consent and connivance or negligence, in the complaint, to bring the matter under that sub-section. (iv) Other officers of a company cannot be made liable under Crl. Misc. No.M-3539 of 2008 [4] sub- section (1) of Section 141. Other officers of a company can be made liable only under sub-section (2) of Section 141, by averring in the complaint their position and duties in the company and their role in regard to the issue and dishonour of the cheque, disclosing consent, connivance or negligence.” There is no allegation against the petitioners that they are in- charge or responsible for the conduct of the business. Except the relationship, there is no other allegation which is discernible from the complaint and the summoning order. Hon'ble Apex Court in State of NCT of Delhi v. Rajiv Khurana, 2010(3) R.C.R. (Criminal) 912 has observed as under:- “20. The court further observed that the trauma, harassment and hardship of the criminal proceedings in such cases may be more serious than the ultimate punishment, it is not proper to subject all and sundry to be impleaded as accused in a complaint against a company, even when the requirements of section 138 read with section 141 of the Act are not fulfilled.” Consequently, in view of the law enunciated by the Hon'ble Apex Court in K.K.Ahuja's case (supra) and State of NCT of Delhi's case (supra), the petitioners cannot be prosecuted. Hence, the summoning order, Annexure P2, qua the petitioners is set aside and the impugned complaint, Annexure P1, is quashed. However, the proceedings shall continue against Raman Khanna – respondent no.2. With the aforesaid observations, the petition is disposed of. ( KANWALJIT SINGH AHLUWALIA ) October 6, 2010. JUDGE RC