Hardeep Singh Nagra vs State & Anr.
2010 Latest Caselaw 356 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+   1. CRL.M.C. 3693/2009
+   2. CRL.M.C. 3200/2009
+   3. CRL.M.C. 3678/2009
+   4. CRL.M.C. 3694/2009
#     HARDEEP SINGH NAGRA                 ..... Petitioner
!                      Through: Mr. Kuldeep Singh and Mr.
                       Harpreet Singh, Advs.
               versus
$     STATE & ANR.                         ..... Respondent
^                           Through: Mr.Jaideep Malik, APP
*     CORAM:
      HON'BLE MR. JUSTICE V.K. JAIN

      1.    Whether the Reporters of local papers
            may be allowed to see the judgment?                    No
      2.    To be referred to the Reporter or not?                 Yes
      3.    Whether the judgment should be
            reported in the Digest?                                Yes

: V.K. JAIN, J.

1. These are petitions under Section 482 of the Code of

Criminal Procedure of the Criminal Procedure Code, 1973 for

quashing the criminal complaints instituted against the

petitioner under Section 138 of the Negotiable Instruments Act.

2. A perusal of the complaints would show that besides M/s

Routes Car Rentals (India) Pvt. Ltd., three other persons,

including the petitioner, have been arraigned as accused. It

has been alleged in paragraph 4 of the complaint that accused

no. 4 i.e Hardeep Singh Nagra had given personal guarantee to

the complainant in respect of repayment of loan mentioned in

the complaint.

3. The petitioner committed no offence punishable under

Section 138 of Negotiable Instruments Act, merely by giving

guarantee for the loans taken by accused No. 1 and 2. It is the

drawer of the cheque who is liable to punishment in case the

cheque used by him towards discharge in full or in part of a

debut or liability, when presented to his bank for encashment,

is dishonoured for want of funds and he fails to make payment

within 15 days of receipt of notice envisaged in proviso (b) to

Section 138 of the Act. There is no allegation in the complaint

that the cheques in question were drawn by the petitioner.

Section 138 of Negotiable Instruments Act does not fasten any

criminal liability on the guarantor of a loan secured or sought

to be paid by way of a cheque, which, when presented to the

bank for encashment is dishonoured for want of funds. Of

course, the guarantor incurs a civil liability to pay the debt

guaranteed by him and his liability may be joint as well as

several, but, he is not liable to be punished under Section 138

of Negotiable Instruments Act.

4. Though learned counsel for the petitioner fairly conceded

that the petitioner is a Director in M/s Routes Car Rentals

(India) Pvt. Ltd which has been arraigned as accused no. 1,

there is no averment to this effect in the complaint. If the

offence under Section 138 of Negotiable Instruments Act is

committed by a company, every person who is in-charge of and

responsible to the company for conduct of its business, at the

time of commission of offence, is also liable to punishment on

account of vicarious liability created by Section 141 of the Act.

This is not the case of the complainant that petitioner No.4 was

also a person in-charge of and responsible to the company M/s

Routes Car Rentals (India) Pvt. Ltd. for conduct of its business.

In the absence of such an averment in the complaint it also

cannot be said that the petitioner is vicariously liable for the

offence committed by the company under Section 138 of the

Negotiable Instruments Act on account of dishonor of the

cheques issued by it and its failure to make payment even after

the receipt of notice from the complainant.

5. Since no offence under Section 138 of Negotiable

Instruments Act is made out against the petitioner from the

averments made, the criminal complaints subject matter of

these petitions to the extent they pertain to the petitioner are

hereby quashed. However, the trial will continue as far as the

other accused are concerned.

(V.K.JAIN) JUDGE JANUARY 21, 2010 AK/bg