2023 (3) TMI 224 - HC - Indian Laws

Dishonor of Cheque - failure to complete part of the promise - legal and legitimate dues or not - signatory of the cheque - vicarious liability for an offence - HELD THAT:- The Hon'ble Supreme Court in the case of ALKA KHANDU AVHAD VERSUS AMAR SYAMPRASAD MISHRA & ANR. [2021 (3) TMI 381 - SUPREME COURT] has set out preconditions for a person to be prosecuted under Section 138 of the Negotiable Instruments Act. It was held that there is no question of invoking Section 141 of the NI Act against the appellant, as the liability is the individual liability (may be a joint liabilities), but cannot be said to be the offence committed by a company or by it corporate or firm or other associations of individuals.

It is, thus, settled that the complainant has to make specific averments as are required under the law in order to hold the accused vicariously responsible for the offence.

The petitioner is, admittedly, the wife of Mr. Gunjan Jain, who is the partner in the accused firm, M/s Swift Construction Expert. There is, however, no manner of doubt that on the date when the alleged offence was committed by the company, the petitioner was not a partner and had nothing to do with the affairs of the partnership firm.

It is a settled law that the powers of quashing should be used sparingly, and where the factual matrix in a complaint are laid down clearly and not in a routine manner where bald and unspecified averments are made against the accused persons, the complaint ought not to be quashed. However, where ingredients of an offence are lacking against an accused, it is the duty of the Court to discharge such accused. Holding a Trial against the petitioner under Section 138 read with Section 141, is utmost abuse of the process of law and the Learned Trial Court has passed the summoning order without any application of mind.

Petition allowed.