A.N.JINDAL,J - (1.) CRL . Misc. 18985 of 2007 Dismissed. Crl. Misc. No. 4654-M of 2006 M/s V.V. Enterprises, 576, Industrial Area, Phase II, Chandigarh, has preferred this petition under Section 482 Cr.P.C. through Vinay Kumar Saxena son of J.P. Saxena and by Vinay Saxena in his individual capacity for quashing the complaint dated 18.10.2003 (Annexure P-6) and summoning order dated 12.12.2003 (Annexure P-7), passed in the aforesaid complaint filed under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act'), on the allegations that the petitioners have nothing to do with the affairs of the firm and has not issued the cheque in question. The complaint in question is an abuse of process of the Court and continuation of the proceedings against him will amount to misuse of the process of law. It is not disclosed as to how the petitioner Vinay Kumar Saxena is in charge and responsible for the affairs of the firm. It was Vijay Kumar who issued the cheque and he is looking after the affairs of the firm and was responsible for the same.
(2.) REPLY to this petition has been filed by the respondent wherein it was contended that the evidence of the complainant has already started and out of 9 witnesses, 2 witnesses have already been examined. The Court at this stage is not required to go into the veracity, truthfulness or falsity of the witnesses. The petitioners have not come to the Court with clean hands. The petitioner No. 2 and his co-accused Vijay Kumar has misused the concession of bail granted by the trial Court. As a matter of fact, the partnership deed executed on 2.4.2002 between the petitioner and his co-accused clearly indicates that both the partners shall be entitled and liable to profit and loss in equal shares. Huge amount of Rs. 86455/- is involved in the case and both Vijay Kumar and Vinay Kumar being the partners of the firm are equally responsible for the act of the firm and vicariously liable, therefore, he prayed for the dismissal of the petition. I have heard Mr. Rakesh Bhatia, learned counsel for the petitioner No. 2, Mr. Kapil Aggarwal, learned counsel for the respondent and perused the records of this case with their able assistance.
(3.) SECTION 141 of the Act govern the responsibility of the person for the offence committed by him, which 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 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 : Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled 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 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." ;