TMI Blog2012 (8) TMI 1222X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent to present the cheque again. The respondent again presented the cheque but the cheque was dishonoured with remarks payment stopped by the drawer vide memo dated 23.8.2008 . The respondent again contacted the petitioners, who regretted for the dishonouring of the cheque and said that they could not withdraw the instructions made to the bank. The petitioners asked the respondent to again present the cheque and assured its clearance. The respondent in these circumstances again presented the cheque for encashment but it was returned unpaid with the remarks payment stopped by attachment order/court order vide memo dated 2.9.2008 4. The respondent issued notice dated 18.9.2008 under registered cover and UPC which were not returned to respondent. The petitioners despite notice failed to make the payment of the dishonoured cheque. It has been pleaded that petitioner No. 2 is the Managing Director and authorized signatory of the cheque. The respondent filed the complaint under Section 138 of the Act. On 17.3.2009 the learned Magistrate found prima-facie case for summoning the petitioners and, therefore, issued process to the petitioners under Section 138 of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers have committed offence under Section 138 of the Act and, therefore, the learned Magistrate has committed no wrong in summoning the petitioners under Section 138 of the Act. 9. The learned counsel for the parties on either side have relied some case law in support of their submissions, therefore, it will be appropriate to refer that case law before coming to the facts of the case. Mr. Gupta, has relied Milind Shripad Chandurkar v. Kalim M. Khan(2011) 4 SCC 275 where after noticing Shankar Finance and Investments v. State of A.P(2008) 8 SCC 536, it has been held that where the payee is a proprietary concern the complaint can be filed: (i) by the proprietor of the proprietary concern, describing himself as the sole proprietor of the payee : (ii) the proprietary concern, describing itself as the sole proprietary concern, represented by its sole proprietor; and (iii) the proprietor or the proprietary concern represented by the attorney-holder under the power of attorney executed by the sole proprietor. 10. In Vempati Balaji v. D. Vijaya Gopala Reddi 1999 (1) CCC 691 (A.P) it has been held that cheque should be issued by the drawer in discharging of the full or pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order of the Magistrate. 14. The learned counsel for the respondent has relied M.M.T.C Ltd. v. Medchl Chemicals and Pharma (P) Ltd.(2002) 1 SCC 234. In that case both the cheques when presented were returned with the endorsement payment stopped by drawer . A contention was raised as payment of the cheques had been stopped by the drawer. One of the ingredients of Section 138 was not fulfilled and thus the complaints were not maintainable. The Supreme Court has held as follows: Just such a contention has been negatived by this Court in the case of Modi Cements Ltd. v. Kuchil Kumar Nandi (1998) 3 SCC 249. It has been held that even though the cheque is dishonoured by reason of stop-payment instruction an offence under Section 138 could still be made out. It is held that the presumption under Section 139 is attracted in such a case also. The authority shows that even when the cheque is dishonoured by reason of stop-payment instructions by virtue of Section 139 the Court has to presume that the cheque was received by the holder for the discharge, in whole or in part, of any debt or liability. Of course this is a rebuttable presumption. The accused can thus show that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. It requires strict compliance with the provision. Specific averments in the complaint petition so as to satisfy the requirements of Section 141 of the Act are imperative. Mere fact that at one point of time some role has been played by the accused may not by itself be sufficient to attract the constructive liability under Section 141 of the Act. 18. In Ramrajsingh v. State of Madhya Pradesh(2009) 6 SCC 729, the Supreme Court has noticed N.K Wahi v. Shekhar Singh(2007) 9 SCC 481 in which S.M.S Pharmaceuticals Ltd. v. Neeta Bhalla(2005) 8 SCC 89 has been considered wherein it has been held: (a) It is necessary to specifically aver in a complaint under Section 141 that at the time of offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied. (b) The answer to the question posed in sub-para (b) has to be in the negative. Merely being a Director of a company is not sufficient to make the person liable under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court can be justified in quashing the proceedings only if it comes to the conclusion that even the statement taken on face value do not make out any offence. Obviously, applying that standard, it cannot be said that no offence has been made out against Veralakshmi Gundu Rao. 24. Now coming to the facts of the case, the complaint has been filed by complainant through its proprietor Subhash Bharwal. In para 2 of the complaint, it has been pleaded that complainant is providing services of Industrial Electrical Fitting under the name and style of National Electrical . In para 1 of the complaint, it has been pleaded that complainant is a Firm running under the name and style National Electrical Office . Subhash Bharwal is its sole proprietor. In the complaint, it has been pleaded that accused No. 2 being Managing Director of accused No. 1 issued Account Payee Cheque bearing No. 103540 dated 10.6.2008 for Rs. 2,00,000/- drawn on State Bank of Patiala, Parwanoo, Barotiwala Branch in favour of the complainant. The cheque on presentation was dishonoured with the remarks payment stopped by attachment order/court order vide memo dated 2.9.2008 The notice was issued on 18.9.2008 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose expressions. In para 3 of the petition before grounds it has been pleaded that the complainant aggrieved and dissatisfied with the order summoning the accused and taking cognizance of the case by Judicial Magistrate, files this petition . The substance of the complaint or petition is to be seen and it should not be thrown out merely on technicalities of loose drafting. It emerges from the complaint that complainant is National Electrical sole proprietorship concern of Subhash Bharwal. In view of Milind Shripad Chandurkar (supra) it cannot be said that complaint is not maintainable. 28. It has been contended that there is no averment in the complaint that petitioner No. 2 who allegedly issued the cheque was in charge of and was responsible to the company for the conduct of the business of the company and, therefore, complaint filed against the petitioners is not legally tenable. In para 8 of the complaint, it has been pleaded that accused No. 2 is acting as Managing Director and authorized signatory of the cheque and accused No. 2 is managing day to day affairs of accused No. 1 and as such, both the accused are liable for dishonour of the cheque. 29. The cheque Ex.C-1 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at drawer had no reasons to believe that cheque would be dishonoured for reasons stated in Section 138 of the Act. The accused will have to show that there were sufficient funds in the account to encash the cheque despite the attachment order/court order. The burden is on the petitioners and complaint cannot be quashed on this ground. The petitioners have filed statement of accounts of Nexus Health and Beauty Care Pvt. Ltd. from 1.6.2008 to 30.9.2008 of account No. 65022958589 with the petition from the bank. This document is not on the lower court file. It is not clear from this document what was the attachment/court order and for what amount. The petitioners have not placed on record court attachment order. 32. It has been contended that there is nothing on record to show that notice dated 18.9.2008 Ex.C-4 was served on the petitioners. In affidavit Ex.CW-1.A in paragraph 9 the respondent has stated that the notice dated 18.9.2008 was issued to petitioners under registered cover as well as under Postal Certificate and both were not returned to the respondent. Ex.C-5 is the postal receipt and Ex.C-6 is the UPC. It is not the case of the petitioners that addresses of petitioners ..... X X X X Extracts X X X X X X X X Extracts X X X X
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