TMI Blog2003 (9) TMI 822X X X X Extracts X X X X X X X X Extracts X X X X ..... the agreement to purchase that flat and accordingly terminating the agreement, demanded back Rs. 7,10,000/- paid to the accused and in that connection, he was given three cheques, out of which, one cheque for Rs. 2,50,000/- was honoured i.e., encashed but, when the cheque bearing No. 740855, dated 19.1.2000 for Rs. 2,50,000/- was presented, it was dishonoured vide Banker's memo dated 20.1.2000. So also the cheque bearing No. 740856, dated 24.1.2000 for Rs. 2,10,000/-, when presented on 24.1.2000, was returned dishonoured with endorsement as funds insufficient . Consequently, he sent legal notice dated 30.1.2000 calling upon the accused to pay, within fifteen days from the date of receipt of the notice, the amount of Rs. 4,60,000/-, the amount of said two cheques. It was served on all the petitioners-accused. For that, the second petitioner, third accused, sent an untenable reply under letter dated 14.2.2000 and did not comply the demand made. Hence, he filed complaint under Section 200 of the Cr.P.C. against the firm and all its partners for an offence punishable under Section 138 of the Negotiable Instruments Act. After taking cognizance, process was issued to the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... knowledge, or that he had exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in Sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly . 7. Now, reference can be had to the explanation to Section 141(2) of the Act wherein, it is explained that for the purpose of Section 141, 'company' means any body corporate and includes a firm or other association of individuals and, 'director', in relation to a firm, means a partner in the firm. So, while reading Section 141 of the Act, wherever the words 'company' and 'director' are found, they have to be read and understood as explained above. 8. In the present matter, so far as impleading first petitioner-firm as accused is concerned, there i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oners-accused tried to derive support to his argument that in the present case, the petitioners, other than the first petitioner-accused, could not have been proceeded with. 10. However, it may be noted that in the case of U.P. Pollution Control Board v. Modi Distillery and Ors., : 1988CriLJ1112 , the Supreme Court has held that, where the industrial unit itself wilfully failed to furnish the requisite information to the Board regarding the particulars and names of the Managing Director, Directors and other persons responsible for the conduct of the company resulting in mentioning incorrect name of the company in the complaint, it was not open to them to take advantage of the lapse of their own and claim that the prosecution be quashed against them. So also in the case of P.A. Verghese v. MAA Communications Private Limited, Bangalore, 1997 Cri. L.J. 4208 (Kar.), a learned Single Judge of this Court has held that, when legal notice was issued to the accused-company calling upon to pay amount covered under cheque but no reply sent by the accused-company denying or admitting their liability or specifying person responsible for its affairs, then complaint filed against all the di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill be for the persons, who were issued/served with such notice, to make it clear not only that they were not in charge of and responsible for the conduct of the business of the company, firm or association of individuals, but also to come out specifying the person(s) in charge of and responsible for the conduct of its business/affairs. If not done so and consequently in the circumstances, all of them are arrayed as accused, they cannot subsequently contend that they were not liable to be proceeded with/prosecuted and that they have been unnecessarily impleaded as accused. Of course, from the reply notice, if it can be made out or clear that anyone or more among such persons only is/are liable to be prosecuted and proceeded with and such other person(s) also take up the liability for self and also for and on behalf of the company/firm/ association of individuals, then such other person(s) only to be proceeded with and not any other person(s) even if happens to be director(s) or partner(s) or officer(s) of such company, firm or association of individuals. So also, if the liability under the cheque is disputed or in dispute or not made clear or not admitted and taken by anybody and, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as Funds Insufficient . Similarly, in paragraph 6, it is stated that: 6. It is submitted that the petitioners 4 and 5 are not at all signatory to the cheques and hence they do not have any liability as on the cheque issued by the 2nd petitioner. . 15. What has been underlined in the above extracted portions show that, at one place, it is stated that the third petitioner has issued the cheques whereas, at other places in other paragraphs, it is stated that cheques were issued by the second petitioner. Thus, the petitioners themselves are not clear on the point as to who has issued the cheques, though it is in their knowledge that who, in fact, issued/signed the cheques and was in charge of and responsible for the conduct of the business of the firm during the relevant period when the cheques were issued. So, even at this stage also, this Court cannot say that who had issued cheques and whether such person, who issued cheques, was in charge of and responsible for the conduct of the business of the firm, first petitioner-accused and fourth and fifth petitioners have been unnecessarily impleaded as accused. 16. It is also to be noted that, according to the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X
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