Himachal Pradesh High CourtNisha Chaudhary vs Smt. Taruna Kashyap on 14 May, 2018Author:Sureshwar ThakurBench:Sureshwar ThakurIN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

                                         Cr.MMO No. 371 of 2017.Reserved on : 7th May, 2018..Decided on : 14th May, 2018.Nisha Chaudhary                                                         .....Petitioner.Versus

    Smt. Taruna Kashyap                                                   ....Respondent.Coram:The Hon'ble Mr. Justice Sureshwar Thakur, Judge.Whether approved for reporting?1

    For the Petitioner:                            Mr. P. S. Goverdhan, Advocate.
    For the Respondent:                            Mr. Parveen Chandel, Advocate.Sureshwar Thakur, Judge.The instant petition is directed, against, the





    orders recorded, on 29.05.2017, by the learned trial

    judge, whereby, he, after taking cognizance, upon, an





    offence punishable underSection 138, of, the Negotiable

    Instruments Act (hereinafter referred to as the Act),

    proceeded, to, order for issuance of summons, upon, the

    petitioner herein.1Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 19/05/2018 20:20:51 :::HCHP...2....2.        The   learned    counsel     appearing,            for     the





    petitioner herein, has with much fervor, and, vehemence





    contended that, given the averments borne in the

    complaint, of, accused one Rajiv Malhotra, being, the sole

    proprietor, of, M/s Richman Consultant and Advisers, (i)




    thereupon, prima facie hence, when, the corporate entity

    aforesaid, is apparently averred in the complaint, to, be


    under the sole proprietorship of one Rajiv Malhotra, (ii)

    thereupon, ascription(s), of, any incriminatory role vis-a-vis the petitioner herein, wanting in legal strength,

    besides rendition, of, orders, for, issuance of summons




    upon her, after cognizance being taken, upon, the





    apposite complaint, being, also visited with a stain, of,





    gross illegality, (iii) unless averments, are, borne in the

    complaint, bearing consonance, with, the substantive

    provisions, occurring inSection 141, of, the Act,

    provisions whereof stand extracted hereinafter, (iv)

    comprised in the accused/petitioner herein, being averred::: Downloaded on - 19/05/2018 20:20:51 :::HCHP...3....to be responsible, for, the conduct of business of the





    aforesaid company. Provisions ofSection 141of the Act





    read as under:"141 Offences by companies. --(1) If the person committing an offence undersection 138is a company, every person who, at the time the offence
           was committed, was in charge of, and was responsible to
           the company for the conduct of the business of the

           company, as well as the company, shall be deemed to be

           guilty of the offence and shall be liable to be proceeded
           against and punished accordingly:Provided that nothing contained in this sub-section
           shall render any person liable to punishment if he proves



           that the offence was committed without his knowledge, or
           that he had exercised all due diligence to prevent the




           commission of such offence:Provided further that where a person is nominated as a





           Director of a company by virtue of his holding any office
           or employment in the Central Government or State





           Government or a financial corporation owned or
           controlled by the Central Government or the State
           Government, as the case may be, he shall not be liable for
           prosecution under this Chapter.(2) Notwithstanding anything contained in sub-section (1),
           where any offence under this Act has been committed by a
           company and it is proved that the offence has been::: Downloaded on - 19/05/2018 20:20:51 :::HCHP...4...committed with the consent or connivance of, or is




                                                                   .attributable to, any neglect on the part of, any director,





            manager, secretary or other officer of the company, such
            director, manager, secretary or other officer shall also be





            deemed to be guilty of that offence and shall be liable to
            be proceeded against and punished accordingly."He submits that, given, a, bare reading of the complaint,




    its rather, not, within the domain, of, the hereinabove

    extracted substantive provisions, of,Section 141, of, the


    Act, hence ascribing vis-a-vis the accused/petitioner

    herein, any role of hers managing the business, of, the



    company, thereupon, the impugned order warranting its

    reversal.   However, the aforesaid submission, is, fully




    negated,    by    this    Court      pronouncing             an     order,       on





    15.3.2018, whereunder, on a submission made before





    this Court, by the learned counsel appearing, for, the

    petitioner, qua given respondent No.3, expiring, during

    the pendency of the instant petition before this Court,

    and, per se, thereupon, hence respondent No.2 headed

    by   deceased       respondent          No.3,       ipso       facto        hence::: Downloaded on - 19/05/2018 20:20:51 :::HCHP...5....dissolving, this Court proceeded to hence accept, the apt





    submission, and, also made an order in consonance





    therewith. Consequently, with, corporate entity, named,

    Richman    Consultant        and    Advisers,      being        dissolved,

    hence, renders unattractable hereat the mandate, ofSection 141of the Act.3.                           to
              Be that as it may, the further sequel thereof, is


    that, with there occurring rather categorical averments,

    in the complaint, of, the petitioner herein, hence, aiding


    or abetting deceased Rajiv Malhotra, hence, to deliver

    the dishonoured negotiable amount vis-a-vis her, (i)




    thereupon,     even     if    the     dishonoured              negotiable





    instrument, carries thereon, only, the signatures of





    deceased Rajiv Malhotra, (ii) nonetheless, with apt

    ascriptions,   being         borne     therein          vis-a-vis          the

    accused/petitioner herein, qua hers abetting or aiding,

    deceased Rajiv Malhotra, in the latter committing the

    alleged offence, (iii) thereupon, despite, the negotiable::: Downloaded on - 19/05/2018 20:20:51 :::HCHP...6....instrument being signatured, solitarily, by deceased Rajiv





    Malhotra,     does   not   ipso   facto    hence         efface,        the





    incriminatory role of the accused/petitioner, rather the

    order impugned before this Court is both, apt and

    tenable.4.


                 For the foregoing reasons, there is no merit in

    the instant petition, and, it is dismissed accordingly. The


    impugned order is maintained and affirmed. The parties

    are directed to appear on 28th May, 2018, before the


    learned trial Court.    However, it is made clear that the

    observations made hereinabove shall have no bearings,




    on the merits of the case. All pending applications also





    stand disposed of. Records, if any, received, be sent back





    forthwith.(Sureshwar Thakur)
    14   th
            May, 2018.                         Judge.(jai)::: Downloaded on - 19/05/2018 20:20:51 :::HCHP