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A creditor can maintain a winding up petition if he complies with the provisions of Sections 433, 434 and 439 of the said Act of 1956. In the present case, the respondent-Bank was admittedly a creditor of the company. The company did not dispute such relationship. The company did not dispute receipt of the notice, hence, the winding up petition was maintainable.
We overrule the decision in Sadanandan Bhadran’s case (supra) and hold that prosecution based upon second or successive dishonour of the cheque is also permissible so long as the same satisfies the requirements stipulated in the proviso to Section 138 of the Negotiable Instruments Act.
If the offence is by a Company, arraigning of a company as an accused is imperative: the company can have criminal liability and further, if a group of persons that guide the business of the companies have the criminal intent, that would be imputed to the body corporate. In this backdrop, Section 141 of the Act has to be understood. The said provision clearly stipulates that when a person which is a company commits an offence, then certain categories of persons in charge as well as the company would be deemed to be liable for the offences under Section 138. Thus, the statutory intendment is absolutely plain. As is perceptible, the provision makes the functionaries and the companies to be liable and that is by deeming fiction.
Learned counsel for the appellant has further placed reliance on the judgment in G. Sagar Suri & Anr. v. State of U.P. & Ors., (2000) 2 SCC 636, wherein during the pendency of the proceedings under Section 138 N.I. Act, prosecution under Sections 406/420 IPC had been launched. This Court quashed the criminal proceedings under Sections 406/420 IPC, observing that it would amount to abuse of process of law. In fact, the issue as to whether the ingredients of both the offences were same, had neither been raised nor decided.
The Delhi high court has stated that while issuing a notice under Section 138 of the Negotiable Instruments Act, an omnibus notice without specifying the amount due under the dishonoured cheque, not even calling upon the alleged accused to pay the amount of cheque, will not meet the requirement of the law. Quashing the complaint in the case, Brainobrain Kids Academy Ltd vs Continental Advertising Ltd, the court noted that the demand for return of the amount is an essential ingredient to constitute an offence punishable under Section 138 of the Act. Thus, if the amount is not specified, the same cannot be said to be a valid demand.
JIK Industries Limited & Ors. Vs. Amarlal V. Jumani (Supreme Court)- It was held that cases of bounced cheque are independent of the revival bid of a sick company. Proceedings in bounced cheque cases under the Negotiable Instruments Act will continue even if there is a scheme to revive the sick company. The revival attempt under the Companies Act will not affect prosecution of charges under Section 138 of the Act. The charges cannot be compounded as in other cases under the Criminal Procedure Code (CrPC).
B. Chandramathi Vs. N. Prakash (SC)- Appellant is about 51 years of age. She is a poor widow who is eking out a living for herself and her family by making jowar rotis and selling them. She is the only earning member of her family. She has two children to look after. It appears that the appellant is unwell. She is stated to have suffered from depression. As of today, the appellant has undergone the sentence for a period of about 2 months before she was released on bail.
In a case of bounced cheque, the Delhi high court has ruled that the magistrate in the place where the cheque was drawn and where the drawee bank is situated has jurisdiction to deal with the complaint. The power under the Negotiable Instruments Act is not with the magistrate where the cheque was presented or from where the notice was issued to the offending party. Shree Raj issued some 45 cheques drawn on State Bank of India in Mumbai to Destination of the World in New Delhi. When the payee company presented them to ICICI Bank in Delhi, they were dishonoured by bank for want of funds.
Sarojben Ashwinkumar Shah etc. Vs. State of Gujarat & ANR. (Supreme Court of India)- In this case, a firm issued cheques to a person but it was returned by the bank as the account had been closed. The payee filed a criminal complaint under Section 138 of the Negotiable Instruments Act against the firm and two partners. During the trial, the two partners produced the copy of the registration of the firm. It indicated that there were two more partners in the firm. So the payee wanted to make them also parties. The newcomers moved the Gujarat high court for quashing this move. The high court refused to do so. They appealed to the Supreme Court. It set aside the high court order and asked it to reconsider the case.
Expressing concern over rising cheque bouncing cases, a Delhi court has sentenced a businessman to six months in jail and imposed a fine of Rs 3 lakh on him, saying no leniency is called for in such cases. Metropolitan Magistrate Vishal Pahuja jailed Delhi-based cloth merchant Ravinder Kumar, rejecting his plea for release on probation after payment of fine, saying that cheque bouncing cases consume a lot of time of the court.
