NAWAB SINGH J. - (1.) BY way of present petition, filed under section 482 of Code of Criminal Procedure, petitioner is seeking quashing of complaint case titled 'M/s Cotton Worth v. M/s. Exim Trade Links' (Annexure P-5) pending in the Court of Judicial Magistrate, Panipat filed under Section 138 of Negotiable Instrument Act (for short 'N.I. Act').
(2.) RESPONDENT -complainant filed a complaint under Section 138 of N.I. Act against the petitioner, her husband and the company owned by them. It has been alleged that petitioner and her husband were partners of firm-accused No.1 and they have been In-charge and were responsible to accused No. 1- company for the conduct of the business of the company Towards part payment of the dues of the respondent-complainant, the accused had issued cheque for an amount of Rs. 1 lac and when the respondent-complainant presented the cheque for encashment, the same was returned unpaid with the remarks 'funds insufficient'. Thereafter, the legal notice was served by the respondent- complainant. In this petition, it has been alleged by the petitioner that petitioner was sleeping partner of the company. She was never involved in the business activity of the company so, proceedings against her be quashed.
(3.) IN N. Rangachari v. Bharat Sanchar Nigam Limited, 2007 (2) RCR (Criminal) 875, a cheque issued by the company was dis-honoured and a complaint under Section 138 of the Act was filed in which allegations were made against the Directors of the company and the question was whether they were incharge of affairs of the company at the relevant time or not. It was held by Hon'ble Supreme Court that it can be adjudged only during he course of trial and complaint can not be quashed under Section 482 Cr.P.C. Dealing with the provisions of Section 138 and Section 141, N.I. Act, Hon'ble Supreme Court held that "A person normally having business or commercial dealings with a company, would satisfy himself about its creditworthiness and reliability by looking at the promoters and Board of Directors and the nature and extent of its business and its Memorandum or Articles of Association. Other than that, he may not be aware of the arrangements within the company in regard to its management, daily routine, etc. Therefore, when a cheque issued to him by the company is dishonoured, he is expected only to be aware generally of who are incahrge of the affairs of the company. It is not reasonable to expect him to know whether the person who signed the cheque was instructed to do so or whether he has been deprived of his authority to do so when he actually signed the cheque. Those are matters peculiarly within the knowledge of the company and those in charge of it, So, all that a payee of a cheque that is dishonoured can be expected to allege is that the persons named in the complaint are incharge of its affairs. The Directors are prima facie in that position. In the instant case, reading the complaint as a whole, it is clear that the allegations in the complaint are that at the time at which the two dishonoured cheques were issued by the company, the appellant and another were Directors of the company and were incharge of the affairs of the company is not proper to split hairs in reading the complaint so as to come to a conclusion that the allegations as a whole are not sufficient to show that at the relevant point of time the appellant and the other are not alleged to be persons incharge of the affairs of the company. Obviously, the complaint refers to the point of time when the two cheques were issued, their presentment, dishonour and failure to pay in spite of notice of dishonour. Thus it cannot be said that the allegations in the complaint against the appellant did not contain sufficient averments to justify the issue of process to the appellant and therefore, the complaint ought to be quashed under Section 482 Cr.P.C. In fact, an advertence to Sections 138 and 141 of the Negotiable Instruments Act shows that on the other elements of an offence under Section 138 being satisfied, the burden is on the Board of Directors or the Officers in-charge of the affairs of the company to show that they are not liable to be convicted. Any restriction on their power or existence of any special circumstance that makes them not liable is something that is peculiarly within their knowledge and it is for them to establish at the trial such a restriction or to show that at the relevant time they were not incharge of the affairs of the company. Reading the complaint as a whole, it is a case where the contentions sought to be raised by the appellant can only be dealt with after the conclusion of the trial." ;