Delhi High Court
Darbar Exports And Ors. vs Bank Of India And Ors. on 13 March, 2003
Equivalent citations: 2003IIIAD(DELHI)190, 104(2003)DLT174, 2003(68)DRJ1
Author: R.C. Chopra
Bench: R.C. Chopra
JUDGMENT R.C. Chopra, J.
1. This petition under Section 482 of the Code of Cril. Procedure (hereinafter referred to as "the Code" only) is directed against an order dated 31.5.2002 passed by learned Addl. Sessions Judge, New Delhi by which an application of the petitioners for recall of the summons issued under Section 138 of the Negotiable Instruments Act (hereinafter referred to as "the Act") was declined and notice under Section 251 of the Code was ordered to be served upon the petitioners.
2. I have heard learned counsel for the petitioners and learned counsel for the respondents. I have gone through the records.
3. The petitioner No. 1 a partnership firm and its partners petitioners No. 2 and 3 are being proceeded against under Section 138 of the Act on the basis of a complaint filed by respondent No. 1. The petitioners moved an application for recall of the summoning order mainly on the ground that no notice under Section 138(b) of the Act was served upon the petitioners; that there was no cause of action in favor of respondent-complainant and the petitioner No. 3 was only a sleeping partner and in the complaint there were no allegations against her to render her liable in terms of Section 141 of the Act. The learned Trial Judge vide the impugned order rejected the pleas raised by the petitioners.
4. Coming to the plea that there was no cause of action in favor of respondent-complainant as no notice under Section 138(b) of the Act was served upon the petitioners, this Court finds that in Para 8 of the complaint it was specifically alleged by the petitioners that notice of demand in terms of Section 138(b) of the Act was served upon the respondents by Regd. A.D as well as Under Postal Certificate dated 14.10.1993 and since the accused failed to make payment within a period of 15 days of the receipt of the notice the complaint was being filed. The cheque in question was dis-honoured vide Memo dated 29.9.1993. It was returned to the complainant on 1.10.1993 and a notice of demand under Section 138(b) of the Act was sent to the petitioners on 14.10.1993. The complaint was filed on 26.11.1993. The Supreme Court in the case State of Madya Pradesh Vs. Hira Lal & Ors as well as in K. Bhaskaran Vs. Sankaran Vaidhyan Balan and another has categorically held that the reports" not available" " house locked" " shop closed" etc. have to be deemed as service upon the drawer and by manipulating such reports a drawer cannot to be permitted to circumvent a prosecution under Section 138 of the Act. The burden is on the drawer to establish that he had not received the notice. The Act does not provide a specific mode of service of notice under Section 138 of the Act and as such a notice can be sent under Postal Certificate also. If the notice is correctly addressed to the addressee a presumption under Section 27 of the General Clauses Act may be drawn in favor of service. This presumption is rebuttable but it is always a question for adjudication in the course of trial. The summons issued under Section 138 of the Act cannot be challenged at the threshold by raising such pleas. The principles incorporated in Section 27 of the General Clauses Act can be profitably imported in a case where the sender has dispatched a notice by post with correct address written on it. Therefore, the learned Trial Judge was fully justified in holding that at this stage it was not possible to hold that no notice under Section 138(b) of the Act was served upon the petitioners and as such the complaint was not maintainable. If notice under Section 138(b) of the Act is ultimately proved to have been served upon the petitioners the complainant would be well within time as it was filed within the statutory period prescribed under Section 138 of the Act.
5. Learned counsel for the petitioners has vehemently argued that no summons could be issued to petitioner No. 3 (Accused No. 3) as there were no allegations in the complaint that she was in charge of and responsible to the firm-petitioner No. 1 for the conduct of its business. The attention of this Court has been drawn to the complaint in which no allegation was made in this behalf. Section 141 of the Act creates criminal liability against those who at the time of the commission of the offence are found to be in charge of and responsible to the company for the conduct of its business but such allegations are required to be made in the complaint itself. It is true that the words used in Section 141(1) of the Act need not be incorporated in the complaint as magic words but the substance of the accusations made in the complaint must fulfill the requirements of the ingredients of Section 141(1) of the Act and make out a case to suggest that at the time of the commission of the offence the accused being proceeded against was in charge of and was responsible to the company for the conduct of its business. Criminal liability cannot be foisted upon some one on the basis of conjectures or surmises. Specific allegations supported by evidence have to be brought on record for setting into motion the machinery of criminal law against an accused. Therefore, unless some allegations in terms of Section 141(1) of the Act are made against an accused in the complaint itself he cannot be summoned and proceeded against under Section 138 read with Section 141 of the Act. The complaint filed by respondent No. 1 did not contain any allegation against petitioner No. 3 in terms of Section 141(1) of the Act and as such the petitioner No. 3 could not have been proceeded against under Section 138 of the Act.
6. In the result, this Court is of the considered view that the learned Trial Judge was justified in holding that it could not be said that no notice was served upon the petitioners or that the complaint was not within time or that it did not disclose any cause of action. However the view taken by learned Trial Judge in regard to the liability of petitioner No. 3 cannot be sustained as there were no allegations in the complaint to fasten liability upon petitioner No. 3 under Section 138/141(1) of the Act.
7. Accordingly, the petition is partly allowed and the summons issued against petitioner No. 3 under Section 138 of the Act are quashed. Let petitioners No. 1 and 2 be proceeded against under Section 138 of the Act in accordance with law.
8. The petition stands disposed of.