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2024 (2) TMI 868 - HC - Indian LawsDishonour of Cheque - cheque issued by the petitioner or not - Petitioner is an agent of the accused no. 1 firm - vicarious liability of the petitioner - HELD THAT:- A reading of the complaints would show that barring the assertion that the petitioner had acted as an agent of the accused no. 1, there is no other assertion that the petitioner, in any manner, was incharge of the firm of the accused no. 1 or had any say in its working. The cheques are not stated to be issued by the petitioner. It is trite law that for a person to be subjected to criminal proceedings, specific averments have to be in a complaint. It is also imperative to establish that a person who is sought to be made criminally liable should, at the time of the commission of the offence, be in charge of and responsible for the conduct of the business of the company, to initiate proceedings under Section 141 of the Negotiable Instruments Act, 1881 The petitioner herein is averred to only be an agent of the accused no. 1 firm. There is not even an assertion in the complaint that the petitioner was in any manner in charge of or was responsible to the accused no. 2 for the conduct of its business - Applying the above test to the facts of the present case, therefore, the offence under Section 138 of the Act is not made out against the petitioner. The prejudice caused to the petitioner is evident from the fact that though the complaint has been filed in the year 2014 and was re-filed before the learned MM in 2017, the accused nos. 1 to 3 are yet to be served with the summons issued by the Court. As far as the plea of the learned counsel for the respondent that the petitioner be allowed to be summoned by the respondent as a witness in the subject complaints, as the petitioner is now not an accused in the complaints, the respondent shall be at liberty to move an appropriate application, if so advised, to include the petitioner in the list of witnesses to be examined. Petition allowed.
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