Sections 138 and 141 of the Negotiable Instruments Act, 1881 - failure of complainant to plead - Directors, Manager, Secretary or other officers of the company for arraying as accused there must be specific pleadings that the accused were in charge of and responsible for the conduct of the business of the company - High court rightly quashed the complaint =
failure (and consequential effect) of Pradip Sarkar to
specifically state in his complaint filed under Sections 138 and 141
of the Negotiable Instruments Act, 1881 that the appellants/accused persons were in charge of and responsible for the conduct of the business of M/s. Heritage Herbs Ltd. of which they were said to be Directors.=
Insofar as the first
complaint is concerned, the appellants were not even made parties and
therefore there is no question of any allegations being made against them
in that complaint.
As far as the second complaint is concerned, the only
allegation made is to be found in paragraph 6 thereof which reads as
follows:-
“That in this context your petitioner refers to the provisions
of Section 141 of the Negotiable Instrument Act, where it has
been specifically stated that if the offender is the company
then the person who at the time of the offence was committed was
in charge of and was responsible to the company for the conduct
of the business of the company, other Directors, Manager,
Secretary or other officers of the company shall be guilty of
the offence, unless the persons referred to above prove
otherwise, as per the saving clause of the said section. In
section 5 of the Companies Act, also made those officers
responsible for crime committed by the company.”
The law on the subject is now very well-settled by a series of
decisions rendered by this Court and it is not necessary to repeat the
views expressed time and again. Suffice it to say, that the law has once
again been stated in
A.K.Singhania vs. Gujarat State Fertilizer Company Ltd.[1] to the effect that
it is necessary for a complainant to state in
the complaint that the person accused was in charge of and responsible for
the conduct of the business of the company. Although, no particular form
for making such an allegation is prescribed, and it may not be necessary to
reproduce the language of Section 138 of the Negotiable Instruments Act,
1881, but a reading of the complaint should show that the substance of the
accusation discloses that the accused person was in charge of and
responsible for the conduct of the business of the company at the relevant
time.
From the averment made in the complaint, which is reproduced above,
it can safely be said that there is no specific or even a general
allegation made against the appellants.
10. Under these circumstances, the complaint against the appellants
deserves dismissal. A contrary view taken by the High Court cannot be
accepted. Accordingly, the appeals are allowed and the order passed by the
High Court is set aside.
2014 (March.Part) judis.nic.in/supremecourt/filename=41331
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 213 OF 2006
Mannalal Chamaria & Anr. ....Appellants
Versus
State of West Bengal and Anr ....Respondents
WITH
CRIMINAL APPEAL NO. 215 OF 2006
AND
CRIMINAL APPEAL NO. 217 OF 2006
J U D G M E N T
Madan B. Lokur, J.
1. The question arising for consideration in these appeals relates
to the alleged failure (and consequential effect) of Pradip Sarkar to
specifically state in his complaint filed under Sections 138 and 141
of the Negotiable Instruments Act, 1881 that the
appellants/accused persons were in charge of and responsible for
the conduct of the business of M/s. Heritage Herbs Ltd. of which
they were said to be Directors.
2. In a complaint filed on 31st March, 2001, Pradip Sarkar alleged that
Heritage Herbs had made an offer for collecting money from the market with
a view to allot land to the intending investors. On the basis of the
offer made, Pradip Sarkar invested an amount of Rs.1,50,000/- and Heritage
Herbs issued three receipt-cum-allotment letters for three plots of land
to Pradip Sarkar. At the time of handing over the receipt-cum-allotment
letters, Pradip Sarkar was also handed over three cheques of Rs. 61,000/-
each post dated to 29th October, 2000. These cheques were issued by
Heritage Herbs and were signed by Raj Kumar Chamaria as Chairman of the
said concern.
3. All the three cheques were deposited by Pradip Sarkar but were
dishonoured by the concerned bank. This led Pradip Sarkar to take steps to
issue a notice to and initiate proceedings against Heritage Herbs and Raj
Kumar Chamaria under the provisions of Section 138 read with Section 141 of
the Negotiable Instruments Act, 1881.
4. During the pendency of the proceedings Raj Kumar Chamaria died on
10th December, 2003.
5. Thereafter, Pradip Sarkar moved an application for impleading the
appellants as accused persons. The application was allowed and the
appellants were impleaded as accused persons by the concerned Magistrate by
an order dated 28th April, 2004 and summons issued to them.
6. Feeling aggrieved by their impleadment and summons issued to them,
the appellants preferred Criminal Revision Petitions in the Calcutta High
Court, which dismissed the petitions.
7. The appellants have challenged the order of the Calcutta High Court
and the only contention urged is that no specific allegations were made
against them either in the complaint as originally filed on 31st March,
2001 or in the amended complaint filed on 28th April 2004.
8. We have been taken through both the complaints by learned counsel for
the appellants and find that there is no allegation worth the name against
any of the appellants in either of the complaints. Insofar as the first
complaint is concerned, the appellants were not even made parties and
therefore there is no question of any allegations being made against them
in that complaint. As far as the second complaint is concerned, the only
allegation made is to be found in paragraph 6 thereof which reads as
follows:-
“That in this context your petitioner refers to the provisions
of Section 141 of the Negotiable Instrument Act, where it has
been specifically stated that if the offender is the company
then the person who at the time of the offence was committed was
in charge of and was responsible to the company for the conduct
of the business of the company, other Directors, Manager,
Secretary or other officers of the company shall be guilty of
the offence, unless the persons referred to above prove
otherwise, as per the saving clause of the said section. In
section 5 of the Companies Act, also made those officers
responsible for crime committed by the company.”
9. The law on the subject is now very well-settled by a series of
decisions rendered by this Court and it is not necessary to repeat the
views expressed time and again. Suffice it to say, that the law has once
again been stated in A.K.Singhania vs. Gujarat State Fertilizer Company
Ltd.[1] to the effect that it is necessary for a complainant to state in
the complaint that the person accused was in charge of and responsible for
the conduct of the business of the company. Although, no particular form
for making such an allegation is prescribed, and it may not be necessary to
reproduce the language of Section 138 of the Negotiable Instruments Act,
1881, but a reading of the complaint should show that the substance of the
accusation discloses that the accused person was in charge of and
responsible for the conduct of the business of the company at the relevant
time. From the averment made in the complaint, which is reproduced above,
it can safely be said that there is no specific or even a general
allegation made against the appellants.
10. Under these circumstances, the complaint against the appellants
deserves dismissal. A contrary view taken by the High Court cannot be
accepted. Accordingly, the appeals are allowed and the order passed by the
High Court is set aside.
……………………………………J
(Ranjana Prakash Desai)
……………………………………J
(Madan B. Lokur)
New Delhi;
March 25, 2014
-----------------------
[1] MANU/SC/1081/2013
failure (and consequential effect) of Pradip Sarkar to
specifically state in his complaint filed under Sections 138 and 141
of the Negotiable Instruments Act, 1881 that the appellants/accused persons were in charge of and responsible for the conduct of the business of M/s. Heritage Herbs Ltd. of which they were said to be Directors.=
Insofar as the first
complaint is concerned, the appellants were not even made parties and
therefore there is no question of any allegations being made against them
in that complaint.
As far as the second complaint is concerned, the only
allegation made is to be found in paragraph 6 thereof which reads as
follows:-
“That in this context your petitioner refers to the provisions
of Section 141 of the Negotiable Instrument Act, where it has
been specifically stated that if the offender is the company
then the person who at the time of the offence was committed was
in charge of and was responsible to the company for the conduct
of the business of the company, other Directors, Manager,
Secretary or other officers of the company shall be guilty of
the offence, unless the persons referred to above prove
otherwise, as per the saving clause of the said section. In
section 5 of the Companies Act, also made those officers
responsible for crime committed by the company.”
The law on the subject is now very well-settled by a series of
decisions rendered by this Court and it is not necessary to repeat the
views expressed time and again. Suffice it to say, that the law has once
again been stated in
A.K.Singhania vs. Gujarat State Fertilizer Company Ltd.[1] to the effect that
it is necessary for a complainant to state in
the complaint that the person accused was in charge of and responsible for
the conduct of the business of the company. Although, no particular form
for making such an allegation is prescribed, and it may not be necessary to
reproduce the language of Section 138 of the Negotiable Instruments Act,
1881, but a reading of the complaint should show that the substance of the
accusation discloses that the accused person was in charge of and
responsible for the conduct of the business of the company at the relevant
time.
From the averment made in the complaint, which is reproduced above,
it can safely be said that there is no specific or even a general
allegation made against the appellants.
10. Under these circumstances, the complaint against the appellants
deserves dismissal. A contrary view taken by the High Court cannot be
accepted. Accordingly, the appeals are allowed and the order passed by the
High Court is set aside.
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 213 OF 2006
Mannalal Chamaria & Anr. ....Appellants
Versus
State of West Bengal and Anr ....Respondents
WITH
CRIMINAL APPEAL NO. 215 OF 2006
AND
CRIMINAL APPEAL NO. 217 OF 2006
J U D G M E N T
Madan B. Lokur, J.
1. The question arising for consideration in these appeals relates
to the alleged failure (and consequential effect) of Pradip Sarkar to
specifically state in his complaint filed under Sections 138 and 141
of the Negotiable Instruments Act, 1881 that the
appellants/accused persons were in charge of and responsible for
the conduct of the business of M/s. Heritage Herbs Ltd. of which
they were said to be Directors.
2. In a complaint filed on 31st March, 2001, Pradip Sarkar alleged that
Heritage Herbs had made an offer for collecting money from the market with
a view to allot land to the intending investors. On the basis of the
offer made, Pradip Sarkar invested an amount of Rs.1,50,000/- and Heritage
Herbs issued three receipt-cum-allotment letters for three plots of land
to Pradip Sarkar. At the time of handing over the receipt-cum-allotment
letters, Pradip Sarkar was also handed over three cheques of Rs. 61,000/-
each post dated to 29th October, 2000. These cheques were issued by
Heritage Herbs and were signed by Raj Kumar Chamaria as Chairman of the
said concern.
3. All the three cheques were deposited by Pradip Sarkar but were
dishonoured by the concerned bank. This led Pradip Sarkar to take steps to
issue a notice to and initiate proceedings against Heritage Herbs and Raj
Kumar Chamaria under the provisions of Section 138 read with Section 141 of
the Negotiable Instruments Act, 1881.
4. During the pendency of the proceedings Raj Kumar Chamaria died on
10th December, 2003.
5. Thereafter, Pradip Sarkar moved an application for impleading the
appellants as accused persons. The application was allowed and the
appellants were impleaded as accused persons by the concerned Magistrate by
an order dated 28th April, 2004 and summons issued to them.
6. Feeling aggrieved by their impleadment and summons issued to them,
the appellants preferred Criminal Revision Petitions in the Calcutta High
Court, which dismissed the petitions.
7. The appellants have challenged the order of the Calcutta High Court
and the only contention urged is that no specific allegations were made
against them either in the complaint as originally filed on 31st March,
2001 or in the amended complaint filed on 28th April 2004.
8. We have been taken through both the complaints by learned counsel for
the appellants and find that there is no allegation worth the name against
any of the appellants in either of the complaints. Insofar as the first
complaint is concerned, the appellants were not even made parties and
therefore there is no question of any allegations being made against them
in that complaint. As far as the second complaint is concerned, the only
allegation made is to be found in paragraph 6 thereof which reads as
follows:-
“That in this context your petitioner refers to the provisions
of Section 141 of the Negotiable Instrument Act, where it has
been specifically stated that if the offender is the company
then the person who at the time of the offence was committed was
in charge of and was responsible to the company for the conduct
of the business of the company, other Directors, Manager,
Secretary or other officers of the company shall be guilty of
the offence, unless the persons referred to above prove
otherwise, as per the saving clause of the said section. In
section 5 of the Companies Act, also made those officers
responsible for crime committed by the company.”
9. The law on the subject is now very well-settled by a series of
decisions rendered by this Court and it is not necessary to repeat the
views expressed time and again. Suffice it to say, that the law has once
again been stated in A.K.Singhania vs. Gujarat State Fertilizer Company
Ltd.[1] to the effect that it is necessary for a complainant to state in
the complaint that the person accused was in charge of and responsible for
the conduct of the business of the company. Although, no particular form
for making such an allegation is prescribed, and it may not be necessary to
reproduce the language of Section 138 of the Negotiable Instruments Act,
1881, but a reading of the complaint should show that the substance of the
accusation discloses that the accused person was in charge of and
responsible for the conduct of the business of the company at the relevant
time. From the averment made in the complaint, which is reproduced above,
it can safely be said that there is no specific or even a general
allegation made against the appellants.
10. Under these circumstances, the complaint against the appellants
deserves dismissal. A contrary view taken by the High Court cannot be
accepted. Accordingly, the appeals are allowed and the order passed by the
High Court is set aside.
……………………………………J
(Ranjana Prakash Desai)
……………………………………J
(Madan B. Lokur)
New Delhi;
March 25, 2014
-----------------------
[1] MANU/SC/1081/2013
