HIGH COT OF CHHATTISGARHI BILASPUR Criminal Misc. Petition No.430 of 2008 Sanjay Kumar & others Versus State of Chhattisgarh & others PTI ETIONERS: RESPONDENTS: ost or Qronouncement of order on 20th August‘ 2009 Sdl- E T. P. Sharma Judge -2009 UR P f ’\ k 20—8 HIGH COURT OF‘CHHATTISGARH BILASPUR Criminal Misc. Petition No.430 of 2008 PETITIONER: S 1. Sanjay Kumar, S/o Late Hiralal Patel, aged 31 years Madhav Kumar, S/o Late Hiralal Patel, aged 29 years, Chameli, D/o Late Hiralal Patel, aged 27 years, Smt. Hullas Devi, W/o, Late Hiralal Patel, aged 53 years, All R/o Village Bhedikona, Tehsil & Police Station Dabhra, Distt. Janjgir— Champa(CG) Versus State of Chhattisgarh, Through District Magistrate, Distt. Janjgir—Champa (CG) Krishnalal, S/o Motilal Patel, aged» about 58 years, (DEAD NAME DELETED) Resham Lal Patel, Motilal Patel, aged about 54 years, Respondents No.2 & 3 R/o Village Bhedikona, Tehsil & Police Station Dabhra, Distt. Janjgir-Champa (CG) {Petition under Section 482 of the Code of Criminal Procedure, 1973} RESPONDENTS: Present: Mr. Arvind Singh, counsel for the petitioners. Mr. Rajendra Tripathi, Panel Lawyer for the State/respondent No.1. Mr. Prafull Bharat, counsel for respondent No.3. Single Bench: Hon'ble Mr. T.P. Sharma, ORDER (Passed on 20th August, 2009) 1. This petition is for quashment of the criminal proceeding registered in Criminal Case No.2199/2007 before the Judicial Magistrate First Class, Sakti, whereby learned Judicial Magistrate First Class has taken cognizance of the offence punishable under Section 138 of the Negotiabie Instruments Act, 1881 (for short ‘the Act’) against the present, petitioners. J uashment of the criminal proceeding is prayed on the ground that the alleged cheque has not been issued by the present petitioners and has been issued by co-accused Kamlesh Kumar Patel, therefore, the present petitioners are not liable for any liability arose under the saidcheque and continuation of criminal case would be abuse of the process of the Court. Counsel for the parties are heard. . On 11—8—2009 counsel for the petitioners has filed an application for deletion of the name of respondent No.2 Krishnalal on account of his death and the name of respondent No.2 Krishnalal has been deleted by counsel for the petitioners. Learned counsel for the petitioners vehemently argued that the present petitioners are not members of any company or they are not the officers of the company responsible for any payment or they are not members of any association of individuals liable for payment on behalf of co-accused Kamlesh Kumar Patel, therefore, continuation of criminal proceeding against the petitioners would amount to abuse of the process of the Court. Learned counsel placed reliance in the matt‘er of S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla and anotherl in which it has been held by the Apex Court that in case of complaint for the offence punishable under Section 138 of the Act against a company, the complainant is required to make necessary allegation that at the time of commission of the offence the accused was in charge of, and responsible for the conduct of business of the company. Learned counsel further placed reliance in the matter of Sabitha Ramamurthy & Anr. v. R.B.S. Channabasavardhyaz in which it has been held by the Apex Court that the complainant is required to make averment in the complaint that all Directors of the Company were responsible for clearance of the liability. Learned counsel also placed reliance in the matter of Anil Hada v. Indian Acrylic Ltd.3 in which the Apex Court has held that conviction under Section 138 of the Act against the Company finding that the offence was committed by the Company is sine qua non. Learned counsel further relied upon the matter of C.C. Alavi Haji v. Palapetty 1 2005 sccx(Cri) 1975 2 2006 (4) Crimes 67 (SC) 3 AIR 2000 sc 145 ' . Q . . ‘ .. ’uhammed & Anr.4 in which the Apex Court has held that in cas onceipt of ice, cuse, n, within s o ipt ons fro rt res f the opi cti of te Ac, ke pe o the cqu amu d it o the Cu isr l L oel ls e upon h er Sr Kmar o e (NCT Delhi & Anr, in hic C ha h hat in ase f ofee nder Seio 3 of e Ac oby e p e cmplain make ecif agon equd i law d a st coution cessy ard ounel fer lce in t tt o abe Ashokbhai h . S ai Set anot in whic the ujr i o has in anc of llegtio f associi idividual, .& wif are t iati f dividua Led el y lie un t of . ari te J Alexd ot7 in which e r Hh o h hat th caint filed ater three months of the otic a in he na pn o s isued the chee lia to be qu . t ther h lred uns fo respondt No.3 ha arge te tim o tak cognizanc the uts are rue t co the alle n t cmplat and n e efence o ud. r cnl fuer ubms that t presn cae, t que has been sued by Kam u Pa, te c d. One acsiton proceedng was ening i whih th psen etitions av reived he hare f cmplants, te the complas had d a wt etion i was wdraw the as coprose ttiner ve fe an icaio before e cquis Ay que R5 for dia he o rpdn eq gned y us eh s recived he Ln Acqui uthoity and dlivd o he ents. W the respondes presented t said cheue or .ahment it w dishoured on which tice of demand has served upo th petners, t tey av faild t pay, ' w e of n—re not the acd ca 15 day f rece ofsumm m the cou in pect o cmlant under Seon 138 h t ma aymnt f hee ont an subm t ort for dchage of its iabiiity. earned cuns ao rlied te matt of aoj u Pddar v. Stat of ) 5 wh the Apex ourt s eld t c o fnc u ctn 18 th t it is ligator on th art ofth oant to spic lleatis as are rire n an atric nstrc is near. Lene cs urth pad reliance he maer f Ritn Sah v anjay Kanubh h and herG h Gaat Hgh Curt held that bsee any aan o aton of ns husband e no assocon o inls. arne couns lastl red po the mater G H and ohrs v. ohn Promod aner and anher th Keala ig Curt as held t e ompl f ne nd cludes t me of erso wh ha not s qu is ble ashed. On he o and, ean coel r en s ud thatat h e f ing e Cor eqird o nsider gation made i he oin ot th d f theaccse Leaned ouse rth sit in he et s he che is lesh Kmar tel h o- accuse land quii i pd n c e ret per he ce t s o oain hn inant file ri pit whch ithn on bis of mmi and the peios ha ild appltn th Land Aition uthorit with a che of s.0,000/- schrge of t dues accrued in favur of the esonets. The chue was si b acced Kamls Kumar Patel, same wa e by t ad sition Ar eere t t respond hen nt he q f encs, as on no been n e tiio bu h he e o 4.2007 (2) DCR 321 : 2007 (3) Crimes 120 ‘(sc 5 AIR 2007 sc 912 5 2004 Cri.L.J. 1058 7 2000 Cri.L.J. 1653 m l i ) ereafter the respondents have filed the present complaint On the basus of the statement on affidaVIt the Court below has registered case against the petltloners Including Kamlesh Kumar Patel brother of respondent No 3 herein. Learned counsel also submlts that the cheque was executed in favour of the respondents by “association of individuals” and the petitioners & Kamlesh Kumar Patel are members of “association of individuals” In the present case, the cheque has not been Issued by only accused Kamlesh Kumar Patel In discharge of liability accrued against Kamlesh Kumar Patel but the cheque has been issued by Kamlesh Kumar Patel on behalf of all the accused persons in discharge of liability accrued against all the petitioners L and the present complainant has specifically made allegation in his omplaint to this effect, therefore, the present complaint against the 4 petitioners is maintainable under the law. . At the time of taking cognizance the Court is required to see the material adduced on behalf of the complainant or the prosecution and if the material produced on behalf of the complainant or the prosecution is sufficient for taking cognizance against the accused persons, then the Court is competent to take cognizance and issue process, against the accused persons. As has been held by the Apex Court in the matters of S M S. Pharmaceuticals Sabitha & Sara] Kumar (supra), it is obligatory on the part of the complainant to make speCific allegations as are reqUired by law and to state the liability of each accused As has been held by the Apex Court in the matter of Anll Hada (supra), the complainant is required to file complaint against the Company as well as its Director in case of ' offence committed by the Company . n the present case, the complainant has made specific allegation against all the accused persons that all the accused persons were liable for discharge of liability and all the accused persons have filed an application before the Land AcquiSition Authority along With a cheque of Rs 50 000/ Signed by accused Kamlesh Kumar Patel The cheque was delivered to the complainant by the Land Acquisition Authority and when it was presented for encashment, same was dishonoured. After compliance of the provisions of Section 138 of the Act, the respondents have filed complaint against all the accus rson. ccording o th lgations de in t coplain a the L/ th c m I ‘ s ed pes A t e ale ma he mt ll @ y accrued under the ccused persons are iiable for discharge of liabilit aueged cheque. 9. In case of offences by companies under Section 141 of the Act, every person-who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as weii as the company, is liable for discharge of the liability. The word “company" has been defined for ' the purpose of'Section 141 of the Act which reads as followsi - “Company” means any body corporate and includes a firm or other association of individuals”. 10.According to the allegation of the complaint all the persons who were liable to discharge the liability accrued under the cheque have been made as accused with a specific allegation that all the accuse persons are liable for payment of l/3rd they have presented the cheque in disc the Land Acquisition Authority. 11.While dealing with the question of “association of individuals” absence of joint allegation that husband & wife were an association, v wife has not been held liable in case of cheque issued by husband. It was further held that there must be an indication of existence of an d share to the respondents and harge of liability jointly before Gujarat High Court in the case of Ritaben (supra) held that the in association among the individuals to attract the provisions of Section 141 of the Act. Under Section 141 of the Act the Company has been defined'and it includes other “association of individuals”. With a view to fasten liability upon the persons other than the juristic erson, the complainant is required to make allegation that the persons against whom the complaint has been lodged are association of individuals and liable to pay debt on: liability accrued under the cheque in question. 12 n J\ .‘In the present case, the complainant has specifically made allegatio that all the accused persons were liable for payment of share of the respondents/complainant and in discharge of the aforesaid liability they have presented the cheque before the Land Acquisition Authority with an application signed by all the accused persons. ‘ \X of These all the allegations accused in persons the complaint in terms are of association Sufficient to of attract in the liability I dividuals. ”a p i e Court o has tn cnizance ait all ccus r incdi pse peitionrs on te bis o allatn the cplain h is sufficie ter or t ozce aga he pitners ad issuan of tce unes th rebuttd , Ler udiial Mistrat irst las med any galiy ing gnc n aedAdion Judge l nt cotted any lega n ssg ‘ t eson and irm he orde ting cogiza se b t Judical Marate Fr Cl .ouentl I not nd ny scope or interfre in ters of ction 482 f r.P.. The petition is, theror lil o be i and it s acrn ismisd. dismssed i codigly, dse dg E -20 13.Larned belw ake og gans the aed pesons lung the rent te h as f egio made in omt whic nt maial f aking cgnian inst t etio n ce noi ls e same is e. aned Jc age F Cs has not comitt illet in tak conizae ad lernditaI Sessions has aso o mmi illity i dimisin V he rvii affing t r ak nnce pasd y he i gist ist ass. 14Cnseqy, do fi a f ence m Se o the CC efe, abe t Sdl- T. P. hrma a Jue 20-809 Sa