Code of Criminal Procedure, 1973: s.482 – Quashing of complaint filed under s.138 NI Act – Case of the appellantcomplainant was that the partnership firm of which the first respondent was a partner had obtained contracts for data entry, which were sub-contracted to the complainant on deposit of caution amount for assigning the job of data entry to him – After the job of data entry was completed, the accused issued two cheques which on presentation were dishonoured on the ground of insufficiency of funds – Thereafter, two more cheques were issued by the managing partner which were again returned unpaid – Complaint filed under s.138 NI Act – High Court quashed the complaint – Appeal by complainant – Question for consideration in the appeal was whether there were sufficient averments in the complaint to meet the requirement of s.141(1) NI Act – Held: In terms of the explanation to s.141, the expression “company” is defined to mean any body corporate and include a firm or other association of individuals – Sub-section (1) of s.141 postulates that where an offence is committed under s.138 by a company, the company as well as every person who, at the time when the offence was committed, was incharge of and was responsible to the company for the conduct of the business shall be deemed to be guilty of the offence – In the instant case, the complaint contained sufficient description of the nature of the partnership, the business which was being carried on and the role of each of the accused in the conduct of the business and, specifically, in relation to the transactions which took place with the complainant – At every place in the averments, the accused were referred to in the plural sense – Besides this, the specific role of each of them in relation to the transactions arising out of the contract in question, which ultimately led to the dishonour of the cheques, was elucidated – The averments were sufficient to meet the requirement of s.141(1) – The fact that the first accused was a partnership firm of which the remaining two accused were partners was missed by the High Court – Thus, High Court was in error in quashing the complaint against the first respondent – Negotiable Instruments Act, 1881 – ss.138 and 141.
Allowing the appeal, the Court
HELD : The complaint contains a recital of the fact that the first set of cheques were returned for insufficiency of funds. The complaint also contains an averment that after the second set of cheques were dishonoured, the accused assured the complainant that they will be honoured on re-presentation in the month of July 2011. The averments are sufficient to meet the requirement of Section 141(1). The High Court proceeded on the basis that the first accused was a company in which the other two accused were directors. Section 141 undoubtedly uses the expression “company” so as to include a firm or association of persons. The fact that the first accused, in the present case, is a partnership firm of which the remaining two accused are partners has been missed by the High Court. [Paras 16, 17, 18]
Gunmala Sales Private Limited v. Anu Mehta and Others (2015) 1 SCC 103 : [2014] 10 SCR 1117 – relied on
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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