Avneet Food Products And Ors. vs Govt. Of Nct Delhi And Anr.
2002 Latest Caselaw 2016 Del

JUDGMENT

J.D. Kapoor, J.

1. Though through this petition under Section 482 the petitioner seeks quashing of the proceedings arising out of a complaint filed by the respondent under Section 138 of the Negotiable Instruments Act on the premises that by way of summary suit under Order 37 CPC the respondent complainant is entitled to recover the cheque amount whereas under Section 138 the fine can be extended twice to the amount of the cheque and, therefore, it is a case of not only double jeopardy but also allowing the complainant to extract thrice the amount of the cheque.

2. I am afraid this concept of the learned counsel is highly erroneous and misconceived as the proceedings under Section 138 of the Negotiable Instruments Act are independent proceedings and are of criminal nature by virtue of which the defaulter can be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both. The provisions of fine cannot be equated or put on the same pedestal as allowing the respondent/complainant to receive the double of the amount of the cheque as in default of fine person can always be sent to imprisonment. Fine cannot be equated with the recovery suit filed under the provisions of Order 37 CPC. Thus there is no merit in the petition so far as the quashing of the complaint and the proceedings emanating form it are concerned.

3. However the ancillary relief the petitioners are seeking is that petitioner No.2 and 3 could not have been arrayed as accused in their individual capacity as they were neither the person in charge of nor responsible to conduct of day to day business of the company. However this plea can be raised before the learned trial court at first instance as the provisions of Section 141 of the Act specifically provide that if the person committing an offence under Section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Similarly if a person succeeds in proving that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence that person also can be exonerated.

4. In view of the foregoing reasons, the petition is dismissed with the liberty to petitioners 2 & 3 to move the trial court seeking recall of the summoning order. The learned trial court shall keep in mind the provisions of Section 141 of the Act while deciding the application.

5. The petition stands disposed of.