- (1.) M. K. Mittal, J. The application has been filed for quashing the proceedings in Criminal Complaintcase No. 1372of 2003, Sunil Chawlav. Naruttam Baiharwani and another under Section 138 of Negotiable Instruments Act (herein after referred as Act) pending in the Court of Judicial Magistrate, Aligarh.
(2.) HEARD Sri Dharmendra Singhal learned Counsel for the applicants and learned AGA. No one appeared for opposite party No. 2 inspite of sufficient ser vice. The brief facts of the case are that opposite party No. 2 filed a complaint in the Court of Judicial Magistrate, Aligarh alleging that he has a firm Chawala Settlement and the accused No. 1 has a firm Naruttam Motor and Engineering Works. The accused No. 1 Naruttam Baiharwani is the owner of the firm and accused No. 2 who is son of accused No. 1 is manager in the firm. The accused took Rs. One lakh on 20th July 2000 for their business and the complainant gave this amount through cheque No. 851494. The cheque was encashed by the ac cused persons. In lieu of this cheque, the accused gave a post dated cheque of Bank of Baroda for Rs. One lakh having No. 0700349 and date 5th April, 2003. The accused had assured that the cheque would be cashed when presented. The complainant presented this cheque in the bank on 9th April, 2003 but it was returned on 12th April, 2003 with the endorsement the account closed". The com plainant gave a legal notice through his Counsel dated 25th April, 2003 to ac cused persons separately and asked them to make the payment of his money within 15 days. Notices were served on the accused on 26th April, 2003 but no payment was made and then this complaint was filed on 4th June, 2003. Learned Magistrate examined the complainant and his witness under Sec tions 200 and 202, Cr. P. C. and finding that a prima facie case was made out against the accused, directed to summon them by order dated 8th July, 2003. Feeling aggrieved, this application has been filed.
(3.) LEARNED Counsel for the applicants has contended that according to the allegations as made by the complainant the loan was taken for the business purpose and the cheque in question (Copy Annexure-1) also shows that it has been signed by Nirmal Baiharwani as Proprietor/manager of the firm and there fore, the complainant should have impleaded the firm also as party and in ab sence of the firm the complaint is not maintainable and is liable to be quashed. LEARNED Counsel for the applicants has also contended that the complainant has not alleged in the complaint that the applicants were concerned with day-to-day business of the firm and on this ground also the complaint is liable to be quashed. Against it the learned AGA has contended that if the firm has not been impleaded as party the complaint cannot be dismissed and the case can proceed against the accused persons. He also contended that the applicants are Proprietors and Managers of the firm and are concerned with day-to-day business and the arguments as raised by the learned Counsel for the applicants are not tenable. Section 141 of the Act reads as under: "141. Offences by companies.- (1) If the person committing an offence under Section 138 is a company 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 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 per son 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 com mission of such offence: Provided further that where a person is nominated as a Director of a Company by virtue of this holding any office or employment in the Central Government or State Government or a financial corporation owned or con trolled by the Central Government or the State Government, as the case may be he shall not be liable for prosecution under this Chapter. (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 the 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 purposes of this Section, - (a) "company" means any body corporate and includes a firm or other association of individuals; and (b) "director", in relation to a firm, means a partner in the firm. ";