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2017 (2) TMI 1287 - HC - Indian LawsPrayer of quashing the enitre proceedings of case no. 866/05 under Section 138 Negotiable Instruments Act pending before Special Judicial Magistrate (Pollution) Lucknow along with a prayer to quash the order dated 10.5.2007 - Admittedly a complaint under Section 138 Negotiable Instruments Act was filed by the opposite party no.2 wherein the learned Magistrate has taken cognizance and summoned the petitioners along with other co-accused. An application was moved by the petitioners under Section 245 (2) CrPC which was rejected by the learned Magistrate. This order of rejection is also under challenge Held that - the admitted position in law is that in those cases where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction it is mandatory on the part of the Magistrate to conduct an inquiry or investigation before issuing the process. Section 202 of the Cr.P.C. was amended in the year by the Code of Criminal Procedure(Amendment) Act 2005 with effect from 22nd June 2006 by adding the words that and shall in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction . There is a vital purpose or objective behind this amendment namely to ward off false complaints against such persons residing at a far off places in order to save them from unnecessary harassment. Thus the amended provisions casts an obligation on the Magistrate to conduct inquiry or direct investigation before issuing the process so that false complaints are filtered and rejected. In the present case the opposite party no.2 has not complied the provisions of Section 141 of Negotiable Instruments Act. An essential requirement of Section 141 of the Negotiable Instruments Act has not been made wherein it was necessary to specifically aver in the complaint that at the time the offence was committed the present accused was incharge of and responsible for the conduct of business of the company. The requirement of Section 141 is that the person sought to be made liable should be incharge of and responsible for the conduct of the business of the company at the relevant time. Necessary averments ought to be contained in a complaint before a person can be subjected to criminal process. A clear case should be spelled out in the complaint against the person sought to be made liable. A complaint has to be examined by the Magistrate in the first instance on the basis of averments contained therein. Merely being described as a Director in a company is not to satisfy the requirement of Section 141 of Negotiable Instruments Act. Since no compliance of Section 141 of Negotiable Instruments Act has been made by the opposite party no.2 hence the complaint itself is not maintainable under the law. The power under Section 482 Cr.P.C. is not to be exercised in a routine manner but it is for limited purposes namely to give effect to any order under the Code or to prevent abuse of process of any Court or otherwise to secure ends of justice. Time and again Apex Court and various High Courts including ours one have reminded when exercise of power under Section 482 Cr.P.C. would be justified which cannot be placed in straight jacket formula but one thing is very clear that it should not preampt a trial and cannot be used in a routine manner so as to cut short the entire process of trial before the Courts below. Compliance of the provisions of Section 141 Negotiable Instruments Act has not been made by the opposite party no.2 which can and should be seen by this Court in a petition under Section 482 CrPC hence I do not find any force in the argument of the learned counsel for the opposite party. Petition allowed - decided in favor of petitioner.
Issues Involved:
1. Quashing of complaint proceedings under Section 138 of the Negotiable Instruments Act. 2. Applicability of Section 141 of the Negotiable Instruments Act regarding vicarious liability. 3. Validity of the Magistrate's order rejecting the application under Section 245(2) CrPC. 4. Maintainability of the petition following the withdrawal of a previous petition. Detailed Analysis: 1. Quashing of Complaint Proceedings under Section 138 of the Negotiable Instruments Act: The petitioners sought to quash the proceedings of complaint case no.866/2005 under Section 138 of the Negotiable Instruments Act. The court noted that the complaint was filed by Indo Gulf Fertilizers Limited against M/s Vinod Kumar and Company for dishonoring a cheque. The petitioners argued that the complaint did not meet the requirements of Section 141 of the Negotiable Instruments Act, which mandates specific averments about the accused being in charge of and responsible for the conduct of the business at the time of the offence. The court found that the complaint lacked such specific averments and thus did not satisfy the requirements of Section 141, leading to the conclusion that the complaint was not maintainable against the petitioners. 2. Applicability of Section 141 of the Negotiable Instruments Act: The petitioners contended that they were not actively involved in the business and were merely sleeping partners, thus not liable under Section 141. The court referred to several precedents, including SMS Pharmaceuticals Limited vs. Neeta Bhalla, which emphasized that a complaint must specifically aver that the accused was in charge of and responsible for the conduct of the business at the relevant time. The court concluded that the complaint failed to make such averments against the petitioners, thereby not establishing their vicarious liability under Section 141. 3. Validity of the Magistrate's Order Rejecting the Application under Section 245(2) CrPC: The petitioners' application under Section 245(2) CrPC was rejected by the Magistrate on the grounds that they had not appeared in court and were not granted bail. The court upheld the Magistrate's decision, stating that Section 245 CrPC, which pertains to warrant cases, does not apply to summary trials under Section 138 of the Negotiable Instruments Act. Instead, the trial should proceed as per the summary trial procedure outlined in Sections 260 to 265 of the CrPC. 4. Maintainability of the Petition Following the Withdrawal of a Previous Petition: The court addressed the issue of whether the current petition was maintainable after the withdrawal of a previous petition (no.1603/07) by the petitioners. The court noted that the present petition was already pending when the previous petition was withdrawn and sought different reliefs, including the quashing of specific orders. Citing Sarguja Transport Service vs. State Transport Appellate Tribunal, the court held that the current petition was maintainable as it did not constitute a fresh petition but was already in process with distinct reliefs. Conclusion: The court allowed the petition, quashing the complaint case no.866/2005 and the summoning order dated 15.12.2005 to the extent it related to petitioners Vimla Devi and Munni Devi. The proceedings were directed to continue against the remaining accused. The court emphasized the necessity of specific averments in the complaint to establish vicarious liability under Section 141 of the Negotiable Instruments Act and upheld the summary trial procedure for cases under Section 138.
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