Punjab-Haryana High Court
Rakesh Kumar vs M/S Kissan Commission Agent And Ors on 26 September, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2024:PHHC:128373
1
CRM-M-16624-2023
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
Reserved on:05.09.2024
Pronounced on: 26.09.2024
CRM-M-16624-2023
Rakesh Kumar ......Petitioner
Vs.
M/s Kissan Commission Agent and ors. ......Respondents
CRM-M-16830-2023
Rakesh Kumar ......Petitioner
Vs.
M/s Sony Enterprises and ors. ......Respondents
CRM-M-16833-2023
Rakesh Kumar ......Petitioner
Vs.
M/s Sarabjit Dhawan and sons and ors. ......Respondents
CRM-M-16848-2023
Rakesh Kumar ......Petitioner
Vs.
M/s Pehalwan Trading Company and ors. ......Respondents
CRM-M-16849-2023
Rakesh Kumar ......Petitioner
Vs.
M/s G.S. Commission Agent and ors. ......Respondents
CRM-M-16863-2023
Rakesh Kumar ......Petitioner
Vs.
M/s Barkat Ram and sons and ors. ......Respondents
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CRM-M-16624-2023
CRM-M-16888-2023
Rakesh Kumar ......Petitioner
Vs.
M/s Rajiv Sondhi and Company and ors. ......Respondents
CRM-M-16891-2023
Rakesh Kumar ......Petitioner
Vs.
M/s Pyara Lal and sons and ors. ......Respondents
CRM-M-27482-2023
Om Parkash Dhall and another ......Petitioners
Vs.
M/s Kabir Sondhi and Company and ors. ......Respondents
CRM-M-27940-2023
Om Parkash Dhall and another ......Petitioners
Vs.
M/s Harsandhu Trading Co. and ors. ......Respondents
CRM-M-27481-2023
Om Parkash Dhall ......Petitioner
Vs.
M/s Pehalwan Trading Co. and ors. ......Respondents
CRM-M-28162-2023
Om Parkash Dhall and anr. ......Petitioners
Vs.
M/s K.S. Trading Co. and ors. ......Respondents
CRM-M-28168-2023
Om Parkash Dhall and anr. ......Petitioners
Vs.
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CRM-M-16624-2023
M/s Barkat Ram and sons and ors. ......Respondents
CRM-M-28357-2023
Om Parkash Dhall and anr. ......Petitioners
Vs.
M/s Sandhu Trading Co. and ors. ......Respondents
CRM-M-28360-2023
Om Parkash Dhall and anr. ......Petitioners
Vs.
M/s Sony Enterprises and ors. ......Respondents
CRM-M-28365-2023
Om Parkash Dhall and anr. ......Petitioners
Vs.
M/s Gurdial Commission Agent and ors. ......Respondents
CRM-M-28738-2023
Om Parkash Dhall and anr. ......Petitioners
Vs.
M/s Jasbir Singh Commission Agent and ors. ......Respondents
CRM-M-28779-2023
Om Parkash Dhall and anr. ......Petitioners
Vs.
M/s Money Trading Company and ors. ......Respondents
CRM-M-28832-2023
Om Parkash Dhall and anr. ......Petitioners
Vs.
M/s Gurjot Singh and sons and ors. ......Respondents
CRM-M-29246-2023
Om Parkash Dhall and anr. ......Petitioners
Vs.
M/s New Trading Company and ors. ......Respondents
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CRM-M-16624-2023
CRM-M-40589-2023
Om Parkash Dhall and others ......Petitioners
Vs.
M/s Sarbjit Dhawan and sons and ors. ......Respondents
CRM-M-40607-2023
Om Parkash Dhall and others ......Petitioners
Vs.
M/s Gurdial Singh Commission and ors. ......Respondents
CRM-M-40646-2023
Om Parkash Dhall and others ......Petitioners
Vs.
M/s Barkat Ram and sons and ors. ......Respondents
CRM-M-9669-2023
Rakesh Kumar ......Petitioner
Vs.
M/s Money Trading Company ......Respondent
CRM-M-16595-2023
Rakesh Kumar ......Petitioner
Vs.
M/s Gurdial Singh Commission and others ......Respondents
CRM-M-29370-2023
Om Parkash Dhall and another ......Petitioners
Vs.
M/s Rakesh Kumar Ramesh Kumar Trading Co. and others......Respondents
CRM-M-29403-2023
Om Parkash Dhall ......Petitioner
Vs.
M/s Charan Singh Baldev Raj and others ......Respondents
CRM-M-36861-2023
Om Parkash Dhall and others ......Petitioners
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CRM-M-16624-2023
Vs.
M/s Rajiv Sondhi and Co. and others ......Respondents
CRM-M-40534-2023
Jaipal and others ......Petitioners
Vs.
M/s G.S. Commission and others ......Respondents
CRM-M-40540-2023
Om Parkash Dhall and others ......Petitioners
Vs.
M/s Sony Enterprises and others ......Respondents
CRM-M-40543-2023
Om Parkash Dhall and others ......Petitioners
Vs.
M/s Money Trading Company and others ......Respondents
CRM-M-40551-2023
Om Parkash Dhall and others ......Petitioners
Vs.
M/s Pyara Lal and sons and others ......Respondents
CRM-M-40574-2023
Om Parkash Dhall and others ......Petitioners
Vs.
M/s Kissan Commission Agent and others ......Respondents
CRM-M-40582-2023
Jaipal and others ......Petitioners
Vs.
M/s Charan Singh Baldev Raj and others ......Respondents
CRM-M-40586-2023
Jaipal and others ......Petitioners
Vs.
M/s Angrej Singh and Co. and others ......Respondents
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Neutral Citation No:=2024:PHHC:128373
6
CRM-M-16624-2023
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Deepak Vashisth, Advocate and
Mr. Amandeep Chhabra, Advocate
for the petitioner(s).
Mr. Vivek Dahiya, Advocate and
Mr. B.S. Sudan, Advocate
for the respondent(s).
***
ANOOP CHITKARA J.
CRM-M-16624-2023 Criminal Complaint No.263 of 2022 filed on 19.09.2022
bearing CNR No.PBTTA1-001991-2022
CRM-M-16830-2023 Criminal Complaint No.266 of 2022 filed on 19.09.2022
bearing CNR No.PBTTA1-001994-2022
CRM-M-16833-2023 Criminal Complaint No.269 of 2022 filed on 19.09.2022
bearing CNR No.PBTTA1-001997-2022
CRM-M-16848-2023 Criminal Complaint No.270 of 2022 filed on 19.09.2022
bearing CNR No.PBTTA1-001998-2022
CRM-M-16849-2023 Criminal Complaint No.261 of 2022 filed on 19.09.2022
bearing CNR No.PBTTA1-001999-2022
CRM-M-16863-2023 Criminal Complaint No.264 of 2022 filed on 19.09.2022
bearing CNR No.PBTTA1-001992-2022
CRM-M-16888-2023 Criminal Complaint No.267 of 2022 filed on 19.09.2022
bearing CNR No.PBTTA1-001995-2022
CRM-M-16891-2023 Criminal Complaint No.257 of 2022 filed on 19.09.2022
bearing CNR No.PBTTA1-001985-2022
CRM-M-27482-2023 Criminal Complaint No.211 of 2022 filed on 12.07.2022
bearing CNR No.PBTTA1-001677-2022
CRM-M-27940-2023 Criminal Complaint No.181 of 2022 filed on 05.07.2022
bearing CNR No.PBTTA1-001499-2022
CRM-M-27481-2023 Criminal Complaint No.181 of 2022 filed on 15.09.2022
bearing CNR No.PBTTA1-001497-2022
CRM-M-28162-2023 Criminal Complaint No.184 of 2022 filed on 05.07.2022
bearing CNR No.PBTTA1-001496-2022
CRM-M-28168-2023 Criminal Complaint No.174 of 2022 filed on 05.07.2022
bearing CNR No.PBTTA1-001504-2022
CRM-M-28357-2023 Criminal Complaint No.168 of 2022 filed on 05.07.2022
bearing CNR No.PBTTA1-001509-2022
CRM-M-28360-2023 Criminal Complaint No.165 of 2022 filed on 05.07.2022
bearing CNR No.PBTTA1-001512-2022
CRM-M-28365-2023 Criminal Complaint No.166 of 2022 filed on 08.07.2022
bearing CNR No.PBTTA1-001511-2022
CRM-M-28738-2023 Criminal Complaint No.177 of 2022 filed on 05.07.2022
bearing CNR No.PBTTA1-001502-2022
CRM-M-28779-2023 Criminal Complaint No.185 of 2022 filed on 05.07.2022
bearing CNR No.PBTTA1-001495-2022
CRM-M-28832-2023 Criminal Complaint No.172 of 2022 filed on 05.07.2022
bearing CNR No.PBTTA1-001505-2022
CRM-M-29246-2023 Criminal Complaint No.171 of 2022 filed on 05.07.2022
bearing CNR No.PBTTA1-001502-2022
CRM-M-40589-2023 Criminal Complaint No.1992 of 2022 filed on 12.09.2022
bearing CNR No.PBTTA1-001997-2022
CRM-M-40607-2023 Criminal Complaint No.262 of 2022 filed on 12.09.2022
bearing CNR No.PBTTA1-001990-2022
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Neutral Citation No:=2024:PHHC:128373
CRM-M-16624-2023
CRM-M-40646-2023 Criminal Complaint No.264 of 2022 filed on 12.09.2022
bearing CNR No.PBTTA1-001992-2022
CRM-M-9669-2023 Criminal Complaint No.268 of 2022 filed on 19.09.2022
bearing CNR No.PBTTA1-001996-2022
CRM-M-16595-2023 Criminal Complaint No.262 of 2022 filed on 12.09.2022
bearing CNR No.PBTTA1-001990-2022
CRM-M-29370-2023 Criminal Complaint No.179 of 2022 filed on 05.07.2022
bearing CNR No.PBTTA1-001501-2022
CRM-M-29403-2023 Criminal Complaint No.265 of 2022 filed on 19.09.2022
bearing CNR No.PBTTA1-001993-2022
CRM-M-36861-2023 Criminal Complaint No.267 of 2022 filed on 19.09.2022
bearing CNR No.PBTTA1-001995-2022
CRM-M-40534-2023 Criminal Complaint No.261 of 2022 filed on 12.09.2022
bearing CNR No.PBTTA1-001989-2022
CRM-M-40540-2023 Criminal Complaint No.266 of 2022 filed on 12.09.2022
bearing CNR No.PBTTA1-001994-2022
CRM-M-40543-2023 Criminal Complaint No.268 of 2022 filed on 12.09.2022
bearing CNR No.PBTTA1-001996-2022
CRM-M-40551-2023 Criminal Complaint No.257 of 2022 filed on 12.09.2022
bearing CNR No.PBTTA1-001985-2022
CRM-M-40574-2023 Criminal Complaint No.263 of 2022 filed on 19.09.2022
bearing CNR No.PBTTA1-001991-2022
CRM-M-40582-2023 Criminal Complaint No.1988 of 2022 filed on 29.08.2022
bearing CNR No.PBTTA1-001993-2022
CRM-M-40586-2023 Criminal Complaint No.214 of 2022 filed on 12.07.2022
bearing CNR No.PBTTA1-001674-2022
1. This order shall dispose of all the above mentioned petitions, as per the details of
criminal complaint mentioned as above. For the sake of brevity, facts have been taken
from CRM-M-16624-2023.
2. Aggrieved by the issuance of summons in the complaint captioned above, the
accused has come up before this Court under section 482 CrPC for its quashing,
submitting that the petitioner had no role in the firm's business, the other partner was the
signatory of the cheque and was also the sole proprietor of the business, which fact is
proved from the complaint, resultantly, the petitioner could not have been summoned for
the alleged offense, which he never committed.
3. During the course of the business, certain cheques were handed over to the
complainant, including the cheque in question, which bounced, leading to the issuance of
notice and subsequently filing of the complaint Annexure P-1. The complainant filed the
complaint against all the accused, including the petitioner and vide order dated
28.02.2023, bailable warrants were issued. The trial court summoned all the accused,
including the petitioner. Feeling aggrieved by the summoning, he filed the present
petition under section 482 Cr.P.C.
4. The complainant-respondent filed their response and stated that the petitioner
actively deals with the business. Therefore, the petitioner is to discharge legal liability. It
is a matter of evidence whether the petitioner can discharge the liability under the
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CRM-M-16624-2023
Negotiable Instruments Act or not. Thus, the complainant sought the dismissal of the
present petition.
5. The petitioner's counsel argued that in International small-scale industries
Corporation Ltd versus Harmeet Singh PAI NTL Pentel 2010 volume 2 RCR criminal
122, considering the absence of a specific role, the Supreme Court absolved him of the
liabilities. Similarly, in S and S Pharmaceuticals versus Mothanwala 2007 RCR criminal
126 Hon'ble Supreme Court held that the director's liability must be determined when the
offence was committed and merely being a party to the resolution would not be sufficient.
In one Mahla service, private limited versus Nunera 2015 volume 1 SEC civil 433
Supreme Court took a similar view.
6. The respondent's counsel seeks dismissal of the petition and submits that
the appropriate stage for discharge is before the trial Court and not the inherent
jurisdiction of this Court.
7. It is most appropriate to extract the relevant portion of the complaint, which reads
as follows:
"5. That on demanded of the above said amount, the accused issued one
part payment cheque bearing No."296757" dated 30.04.2022 of
Rs.1,19,943/- drawn at Canara Bank Branch Fazilka, District Fazilka of
against accused bank account bearing No.1400261050504 of M/s Kissan
Commission Agent for legal liability/on behalf of M/s J.K. Industries and
accused No.2 Mukesh Kumar signed the above said cheque being
authorized signatory/sole proprietor of M/s Kissan Commission Agent firm
in the presence of my client and witnesses."
8. It is also most appropriate to extract the relevant portion of the reply filed to this
petition, which reads as follows:
"4. A bare reading of the complaint makes it evident that the cheque in
question was issued in discharge of the liability of M/s JK Industries, in
which the petitioner is admittedly a partner. The petitioner cannot escape
his liability as the liability of each and every partner in a partnership firm
is joint and several."
9. A perusal of the above makes it explictly clear that the petitioner was neither the
signatory nor the proprietor of the firm which issued two cheques in question, as has been
specifically mentioned in para 5 of the complaint supra.
10. Before anyone can be summoned to face a criminal trial, the Magistrate must
search for primafacie legally admissible evidence, which attributes some role that makes
out a penal offense.
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11. In the present case, the complainant is silent about the petitioner's role and there
is no evidence pointing out the petitioner's criminal liability with the cheque.
12. In Anil Hada v. Indian Acrylic Ltd., (2000) 1 SCC 1, Hon'ble Supreme Court
holds,
[9]. Three categories of persons can be discerned from the said
provision [141 NIA] who are brought within the purview of the
penal liability through the legal fiction envisaged in the Section.
They are: (1) The company which committed the offence, (2)
Everyone who was in charge of and was responsible for the
business of the company, (3) any other person who is a director or
a manager or a secretary or officer of the company, with whose
connivance or due to whose neglect the company has committed
the offence.
[10]. Normally an offence can be committed by human beings who
are natural persons. Such offence can be tried according to the
procedure established by law. But there are offences which could
be attributed to juristic persons also. If the drawer of a cheque
happens to be a juristic person like a body corporate it can be
prosecuted for the offence under Section 138 of the Act. Now there
is no scope for doubt regarding that aspect in view of the clear
language employed in Section 141 of the Act. In the expanded
ambit of the word "company" even firms or any other associations
of persons are included and as a necessary adjunct thereof a partner
of the firm is treated as director of that company.
[11]. Thus when the drawer of the cheque who falls within the
ambit of Section 138 of the Act is a human being or a body
corporate or even firm, prosecution proceedings can be initiated
against such drawer. In this context the phrase "as well as" used in
sub-section (1) of Section 141 of the Act has some importance. The
said phrase would embroil the persons mentioned in the first
category within the tentacles of the offence on a par with the
offending company. Similarly the words "shall also" in sub-section
(2) are capable of bringing the third category persons traditionally
within the dragnet of the offence on an equal par. The effect of
reading Section 141 is that when the company is the drawer of the
cheque such company is the principal offender under Section 138
of the Act and the remaining persons are made offenders by virtue
of the legal fiction created by the legislature as per the Section.
Hence the actual offence should have been committed by the
company, and then alone the other two categories of persons can
also become liable for the offence.
[12]. If the offence was committed by a company it can be
punished only if the company is prosecuted. But instead of
prosecuting the company if a payee opts to prosecute only the
persons falling within the second or third category the payee can
succeed in the case only if he succeeds in showing that the offence
was actually committed by the company. In such a prosecution the
accused can show that the company has not committed the offence,
though such company is not made an accused, and hence the
prosecuted accused is not liable to be punished. The provisions do
not contain a condition that prosecution of the company is sine qua
non for prosecution of the other persons who fall within the second
and the third categories mentioned above. No doubt a finding that
the offence was committed by the company is sine qua non for
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convicting those other persons. But if a company is not prosecuted
due to any legal snag or otherwise, the other prosecuted persons
cannot, on that score alone, escape from the penal liability created
through the legal fiction envisaged in Section 141 of the Act.
13. In Smt. Katta Sujatha v. Fertilizers & Chem. Travancore Ltd., (2002) 7 SCC 655,
Hon'ble Supreme Court holds,
[5]. In short the partner of a firm is liable to be convicted for an
offence committed by the firm if he was in charge of and was
responsible to the firm for the conduct of the business of the firm
or if it is proved that the offence was committed with the consent
or connivance of, or was attributable to any neglect on the part of
the partner concerned.
[6]. To the same effect are the decisions of this Court in KPG
Nayar v. Jindal Menthol Ltd., 2000(6) Scale 578 and Anil Hada v.
Indian Acrylic Ltd., JT 1999(9) SC 223 : 2000(1) RCR(Criminal) 1
(SC). Examined in the light of these decisions and the law
enunciated, we find no case as such has been made out for
proceeding against the appellant.
14. In Venkatshwarn v. Singravel Yarn Traders., 2009(16) SCC 757 , Hon'ble
Supreme Court holds,
The present appeal is against the order passed by the High Court
refusing to entertain the petition under Section 482 Criminal
Procedure Code challenging the proceedings of complaint filed
against the accused persons for the offence under Section 138 of
Negotiable Instruments Act, 1881. The petition was filed on the
ground that the appellants were not the partners and had nothing to
do with the afore mentioned firm which was accused No.1 in the
complaint. The learned Judge has observed that it was not possible
at this stage to ascertain as to whether the concerne d appellants
were the partners of the partnership firm and whether there was
any partnership firm in existence. When we see the complaint filed
in trial Court, it is very clearly stated as under:
"6. The second accused is guilty, as drawer of the
cheque on behalf of Accused No.1, as its Managing
Partner. The Accused Nos. 3 and 4 being partners of
the Accused No.1, were in charge of and were
responsible for the conduct of the business of
Accused No.1, and shall also be deemed to be guilty
of the offence."
Therefore, the question as to whether the present appellants, who
were accused No.3 and 4, were the partners of the firm and were
responsible for conduct of business is the disputed question of fact
which could not have been gone into under Section 482 Criminal
Procedure Code The High Court was absolutely right in not
entertaining that question. It would be during the trial for the
accused persons to urge that they were not in any way concerned
with the said partnership firm. In our opinion, the High Court was
absolutely right in dismissing the petition under Section 482
Criminal Procedure Code.
15. In Sarojben Ashwinkumar Shah v. State of Gujarat, (2011) 13 SCC 316 , Hon'ble
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CRM-M-16624-2023
Supreme Court holds,
[17] ...As regards the criminal liability of a partner in the firm, in
light of the provisions contained in Section 141 of the Negotiable
Instruments Act, there has to be evidence that at the time the
offence was committed, the partner was in-charge of and was
responsible to the firm for the conduct of the business of the firm.
16. In the light of the judicial precedents mentioned above and the peculiar facts and
circumstances, it is a fit case where the continuation of criminal proceedings shall amount
to an abuse of the process of law, and the Court invokes its inherent jurisdiction under
section 482 CrPC to quash the summons qua the petitioner and all subsequent
proceedings.
17. Given the findings above, present petitions are allowed. The summoning orders
qua all the petitioners, are quashed and set aside. All pending applications stand closed in
tune with this judgment.
(ANOOP CHITKARA)
JUDGE
26.09.2024
anju rani
Whether speaking/reasoned: Yes
Whether reportable: NO.
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