Delhi High Court
Kamana Gupta vs N.C.T. Of Delhi on 29 March, 2001
Equivalent citations: 2001(2)JCC61
JUDGMENT S.K. Agarwal, J.
1. Admit.
This revision petition under Sections 397/401 of Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the order dated 29.8.1997, passed by Ms. Indermeet Kaur Kochar, Additional Sessions Judge, New Delhi summoning the petitioner as an accused in the case under Section 138 of Negotiable Instruments Act, 1881 (for short NI Act).
2. Brief facts are: that M/s. Saksham Financial Services (respondent No. 2) filed a complaint under Section 138 of NI Act against Mr. Ashok Gupta, (Accused No. 1) and M/s. Intex India through its proprietor Smt. Kamana Gupta (petitioner) alleging that they owed to the complainant company Rs. 2,91,469.41; that Ashok Kumar Gupta issued a cheque No. 169059 dated 21.12.1995 for Rs. 2,50,000/- drawn on the Canara Bank, Pitam Pura, Delhi towards part-payment of the dues; that the said cheque was dishonoured on the ground of insufficiency of funds and despite legal notice dated 10th January, 1996 cheque amount was not paid within the statutory period of limitation. After pre-summoning evidence the Court of Sh. O.P. Gupta, MM, New Delhi on 14.2.1997 summoned accused No. 1 Ashok Gupta and dismissed the complaint against the petitioner. The order reads :
14.2.1997 Present: Sh. H.R. Gulani, Director of complainant with Counsel Sh. Dalip Singh, Advocate.
Heard on summoning. From the material on record, there are sufficient grounds to proceed further under Section 138 of Act against accused No. 1. He be summoned on PF/RC for 25.4.1997.
However, accused No. 2 is nothing but proprietary concern of accused No. 1. The same has no independent entity and cannot be proceeded against. The complaint against accused No. 2 is dismissed.
3. The complainant filed revision petition against the order of the Trial Court dismissing the complaint against M/s. Intex India, accused No. 2. The revisional Court vide impugned judgment dated 29.8.1997 ordered the summoning of the petitioner holding:
".....
In my view the order of the learned Trial Court is clearly arbitrary and calls for interference as in the impugned order he has said that accused No. 2 is nothing but the proprietorship concern of accused No. 1 and the same having no independent entity it cannot be proceeded against and accordingly complaint against accused No. 2 was dismissed. The complainant, however, has categorically averred that accused No. 2 Smt. Kamana Gupta is the proprietor of M/s. Intex India and in these circumstances in view of this categorical averment to avoid any legal complication it was incumbent upon the learned MM to have made accused No. 2 as a necessary party. The impugned order dated 14.2.1997 is accordingly set aside and accused No. 2 Smt. Kamana Gupta is also directed to be summoned. Revision Petition disposed of in the above terms. Trial Court record be returned and file consigned to R.R. Announced in the open Court on 29.8.1.997.
Sd/-"
4. The petitioner has filed this revision challenging the order of the revisional Court. I have heard the learned Counsels for the parties and have been taken through the record.
5. Learned Counsel for the petitioner argued that the impugned order of summoning is not sustainable in law; that as per the complainant's own showing the cheque in question was issued by Ashok Gupta, from his savings Bank account in his individual capacity and not as the proprietor/partner/authorised signatory/principal officer of M/s. Intex India (accused No. 2); that the petitioner, who is the proprietor of M/s. Intex India had not issued the said cheque. Therefore, she cannot be held liable under Section 138 of the NI Act. Learned Counsel for the complainant argued to the contrary. In order to appreciate the rival contentions it would be better to refer to Sections 138 and 141 of the NI Act, which read as under :
138. Dishonour of cheque for insufficiency, etc., of funds in the account.--Where any cheque drawn by a person on an account maintained by him with a Banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the Bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that Bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both :
Provided xxxx xxxx xxxx
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.
(2) xxxx xxxx xxxx
6. Bare reading of Section 138 of NI Act would show that when a cheque is drawn by a person and the same is returned unpaid for the reasons mentioned in the section, such person is deemed to have committed offence. The use of expressions "a person" and "such person" in the section, clearly shows that only the person who had drawn the cheque would be deemed to have committed the offence, provided other conditions mentioned in the section are fulfillled. Further if such offence is committed by the company Section 141 of the Act provides that 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 would be deemed to be guilty of the offence.
7. In this case, as noticed above, the cheque in question was not issued by the company. The offence was thus not committed by the company. Admittedly, Ashok Gupta, accused No. 1, had issued the cheque in his individual capacity. Therefore, he alone was rightly summoned. As the cheque was not even issued for and on behalf of the company, therefore, the company or its proprietor, the petitioner herein, cannot be prosecuted for the offence under Section 138, NI Act. The drawer of the cheque alone and no other person except in the contingency mentioned in Section 141 of the NI Act is liable to be prosecuted under Section 138 of the NI Act.
In view of the above, petition is allowed. Impugned judgment and order dated 29.8.1997 passed by the learned Additional Sessions Judge, summoning the petitioner as accused in the case, under Section 138 of the NI Act is hereby set aside. Complaint against the petitioner is dismissed. Trial Court record be sent back forthwith. Petition stands disposed of.