Head Note : 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.
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
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