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TMI Blog2017 (4) TMI 1570X X X X Extracts X X X X X X X X Extracts X X X X ..... eading of the complaint as also the affidavit of examination-in-chief of the complainant and a bare look at the cheque would show that the appellant has not signed the cheque. Application allowed. - CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 19938 of 2016 - - - Dated:- 4-4-2017 - HONOURABLE MR. JUSTICE J.B. PARDIWALA MR K I KAZI, ADVOCATE for the Applicant(s) No. 1 MS SHRUTI PATHAK, APP for the RESPONDENT(s) No. 1 MR NIRAV C SANGHAVI, ADVOCATE for the Respondent(s) No. 2 ORAL ORDER RULE returnable forthwith. Ms.Shruti Pathak, the learned APP waives service of notice of rule for and on behalf of the respondent no.1 State of Gujarat. Mr.Nirav Sanghavi, the learned counsel waives service of notice of rule for and on behalf of the respondent no.2. By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicant herein original accused seeks to invoke the inherent powers of this Court, praying for quashing of the proceedings of the Criminal Case No.1198 of 2015 pending before the learned Metropolitan Magistrate, Court No.32, Ahmedabad, arising from a complaint lodged under Section 138 of the Neg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice. Explanation.- For the purposes of this section, debt or other liability means a legally enforceable debt or other liability . 8. In order to constitute an offence under Section 138 of the N.I. Act, this Court, in Jugesh Sehgal v. Shamsher Singh Gogi (2009) 14 SCC 683 : (AIR 2009 SC (Supp) 2022), noted the following ingredients which are required to be fulfilled: (i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account; (ii) the cheque should have been issued for the discharge, in whole or in part, of any debt or other liability; (iii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier; (iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it provides specifically therefor. In absence of any provision laid down under the statute, a Director of a Company or an employee cannot be held to be vicariously liable for any offence committed by the Company itself. (See Sabitha Ramamurthy v. R.B.S. Channabasavaradhya (2006) 10 SCC 581 : (AIR 2006 SC 3086 : 2006 AIR SCW 4582)) 11. In Sham Sunder and others v. State of Haryana (1989) 4 SCC 630 : (AIR 1989 SC 1982), this Court held as under: 9. The penal provision must be strictly construed in the first place. Secondly, there is no vicarious liability in criminal law unless the statute takes that also within its fold. Section 10 does not provide for such liability. It does not make all the partners liable for the offence whether they do business or not. 12. As rightly pointed out by learned senior counsel for the appellant, the interpretation sought to be advanced by the respondents would add words to Section 141 and extend the principle of vicarious liability to persons who are not named in it. 13. In the case on hand, we are concerned with criminal liability on account of dishonour of a cheque. It primarily falls on the drawer, if it is a Company, then Drawer Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... involvement of the appellant herein and her husband contended that they cannot be permitted to raise any objection on the ground of concealing/suppressing material facts within her knowledge. For the said purpose, he relied on Oswal Fats and Oils Limited v. Additional Commissioner (Administration), Bareilly Division, Bareilly and others (2010) 4 SCC 728, Balwantrai Chimanlal Trivedi v. M.N. Nagrashna and Ors., AIR 1960 SC 1292, J.P. Builders and Anr. v. A. Ramadas Rao and Anr. (2011) 1 SCC 429 : (AIR 2011 SC (Civ) 230). Inasmuch as the appellant had annexed the relevant materials, namely, copy of notice, copy of reply, copy of the complaint and the order issuing process which alone is relevant for consideration in respect of complaint under Section 138 of the N.I. Act, the argument of learned senior counsel for Respondent No.1 that the stand of the appellant has to be rejected for suppressing of material facts or relevant facts, cannot stand. In such circumstances, we are of the view that the case law relied upon by the contesting respondent No.1 is inapplicable to the facts of the present case. 15. Mr. Mukul Rohtagi, learned senior counsel for respondent No.1, by drawing our at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the Judicial Magistrate to proceed and expedite the trial in respect of others. 19. In Gita Berry v. Genesis Educational Foundation, 151 (2009) DLT 155, the petitioner therein was wife and she filed a petition under Section 482 of the Code seeking quashing of the complaint filed under Section 138 of the N.I. Act. The case of the petitioner therein was that the offence under Section 138 of the Act cannot be said to have been made out against her only on the ground that she was a joint account holder along with her husband. It was pointed out that she has neither drawn nor issued the cheque in question and, therefore, according to her, the complaint against her was not maintainable. Learned single Judge of the High Court of Delhi, after noting that the complaint was only under Section 138 of the Act and not under Section 420, IPC and pointing out that nothing was elicited from the complainant to the effect that the petitioner was responsible for the cheque in question, quashed the proceedings insofar as the petitioner therein. 20. In Smt. Bandeep Kaur v. S. Avneet Singh (2008) 2 PLR 796 : (AIR 2008 (NOC) 1301), in a similar situation, learned single Judge of the Punjab and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceeding under Section 138 of the Act. Even the High Court has specifically recorded the stand of the appellant that she was not the signatory of the cheque but rejected the contention that the amount was not due and payable by her solely on the ground that the trial is in progress. It is to be noted that only after issuance of process, a person can approach the High Court seeking quashing of the same on various grounds available to him. Accordingly, the High Court was clearly wrong in holding that the prayer of the appellant cannot even be considered. Further, the High Court itself has directed the Magistrate to carry out the process of admission/denial of documents. In such circumstances, it cannot be concluded that the trial is in advanced stage. For the foregoing reasons, this application succeeds and is hereby allowed. The further proceedings of the Criminal Case No.1198 of 2015 pending before the learned Metropolitan Magistrate, Court No.32, Ahmedabad, are hereby quashed so far as the applicant herein is concerned. The case shall proceed further in accordance with law expeditiously against the co-accused. Rule made absolute. Direct service is permitted. - - TaxTMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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