Joshi, J.@mdashThe instant revision petition has been filed u/s 397 read with 401 Cr.P.C. against the order dated 20th September, 2000 passed by the learned Additional Chief Judicial Magistrate, Pali in "Bhanwarlal v. Sargam Apuntex Ltd. and Ors.", whereby cognizance against the petitioners No. 1 Madanlal, No. 2 Anoop Kumar and PW.3 Pradeep Kumar was taken u/s 138 of the Negotiable Instruments Act, 1881 (in short the Act hereinafter) in relation to cheques Exs. 2, 3 and 4. After intimation, Ex.7 was received from the bank about their dis- honour.
2. The learned counsel for the revisionst-petitioners argued that the petitioners were not in-charge of and responsible to conduct of the company at the relevant time and no prima facie case for proceeding against them under the said section is made out. The learned counsel placed reliance on the following judgments in support of his argument :-
(1) K.P.G. Nair v. Jindal Menthol India Ltd..
(2) State of Haryana v. Brij Lal and Ors.
(3) Nakoda Laminators and Ors. v. State of Raj. and Anr.
(4) Municipal Corporation of Delhi v. Ram Kishan and Ors.
(5) Smt. Harshila Lodha and Anr. v. State of RaJ.
3. Per contra, learned counsel for the complainant-non petitioner argued that there is no illegality, impropriety and incorrectness in the impugned order, as there was a prima facie case against the petitioners for commission of an offence u/s 138 read with Section 141 of the Act. It was further argued that petitioners are Directors of the company and at the time of commission of offence, they were in-charge of and responsible to the affairs of the company. The question of issuance of cheque with knowledge, consent and connivance of petitioners cannot be decided at this stage on probabilities and it is to be decided during the trial. As prima facie case was made out for the said offence against accused persons, the learned Magistrate did not commit any illegality in taking sognizance against them. The learned counsel relied on the following judgments in his support :-
(1) Anil Hada v. Indian Acrylic Ltd.
(2) Rohinton Noria v. NCC Finance Ltd., Hyderabad and Anr.
(3) Mohd. Isaq Gulsani v. J. Rajamouli and Anr.
(4) D. R. Gupta v. State
(5) Pritama Reddy and Ors. v. Charminar Co-operative Urban Bank Ltd. by its special power of Attorney and Anr.
(6) Trichur Cotton Mills Ltd. and Anr. v. Devarasetty Cotton (New Firm) and Anr.
(7) Rajneesh Agarwal v. Amit J. Bhalla
(8) S.P. Subramaniam v. Vasavi Cotton Traders and Anr.
4. The facts in brief are that a complaint was filed in the lower court on 10.1.2000 and it was sent to concerned S.H.O. u/s 155(2) Cr.P.C. The police recorded the statement of Bhanwarlal on 13.3.2000 and thereafter submitted its report on 16.8.2000. The Court recorded the statement of the complainant on 16.9.2000 and took cognizance against the petitioners vide impugned order.
5. It is also relevant to note here that alongwith the complaint, cheques, which are alleged to be dis-honoured, the intimation by the bank, notice issued to the company and its receipts and A/d were also filed with the complaint and exhibited in court during the statement of Bhanwarlal. It is also relevant that S.B. Cri. Misc. Pet. No. 788/2001 was preferred against the impugned order, but in view of the Division Bench judgment of this Court in Sessions Judge, Sawai Madhopur v. Dasrath Singh, the miscellaneous petition was dismissed on 19.12.2001 as withdrawn with liberty to file a revision before the appropriate forum. In the said judgment, it has been held that the order taking cognizance is an intermediary order and not an inter-locutory order and therefore, it is revisable.
6. It has been held in K.P.G. Nair v. Jindal Menthol India Ltd. (supra) as under :-
"nowhere it is stated that on the date when the offence is alleged to have been committed, the appellant was incharge of or was responsible to the accused-company for the conduct of its business. It was further held extracting Section 141(1) of the Act that a person other than the company can be proceeded against and punished accordingly. It follows that a person other than the company can be proceeded against under those provisions only if that person was incharge of and was responsible to the company for the conduct of its business."
7. In has been held in State of Haryana v. Brij Lal and Ors (supra) as under :-
"Vicarious liability of a person for being prosecuted for an offence committed under the Act by a company arises if at the material time he was in-charge of and was also responsible to the company for the conduct of its business. Simply because a person is a director of the company it does not necessarily, mean that he fulfills both the above requirements so as to make him liable. Conversely, without being a director a person can be in-charge of and responsible to the company for the conduct of its business. From the complaint in question we, however, find that except a bald statement that the respondents were directors of the manufactures, there is no other allegation to indicate, even prima facie, that they were in-charge of the company and also responsible to the company for the conduct of its business."
8. The judgments of this Court in Nakoda Laminators v. State of Raj. (supra) and Smt. Harshila Lodha v. State of Rajasthan (supra) are to the same effect as has been given in Brij Lal''s case (supra).
9. It has been observed in a recent judgment delivered by the Apex Court in Katta Sujatha (Smt.) v. Fertilizers & Chemicals Travancore Ltd. and Anr. as under:
"In short the partner of a firm is liable to be convicted for an offence committed by the firm if he was in charge of and was responsible to the firm for the conduct of the business of the firm or if it is proved that the offence was committed with the consent or connivance of, or was attributable to any neglect on the part of the partner concerned."
10. In the above referred case, the Supreme Court was dealing with the meaning of ''person in charge'' with reference to Sections 138 and 141 of the Act.
11. While referring the case of State of Karnataka v. Pratapchand, it was observed by the Apex Court as to the meaning of the term "person in charge" that the person should be in overall control of the day to day business of the company or firm. The person may be a party to the policy being followed by a company and yet not be in charge of the business of the company or may be in charge of but not in overall charge or may be in charge of only some part of the business. In the said case the provisions of Section 34 of Drugs and Cosmetics Act, 1940 were dealt with, which are pare materia to Section 141 of the Act. Previous judgment of G.L. Mehta v. D.H. Mehta, was also referred.
12. The decision of the Apex Court in K.P.J. Nair v. Jindal Menthol (supra) and Anil v. Indian Acrylic Limited (supra) are to the same effect as has been given in Pratap Chand''s case (supra).
13. As per judgments cited by the learned counsel for the non- petitioners, the fact of being incharge of and responsible to company for conduct of its business and issuance of cheque with knowledge, consent and connivance of petitioners could not be decided at this stage and it should be decided during trial.
14. Section 141 of the Negotiable Instruments Act reads as under :-
"141. Offences by companies:-(1) If the person committing an offence u/s 138 is 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.
(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 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."
15. Section 141(2) starts with the non-obstante clause. Under Sub-section (1), the persons in charge of and responsible to the company shall be deemed to be guilty of an offence u/s 138. But, under Sub-section (2) even the persons, who are not stated to be in charge of and responsible to the company can be prosecuted, if it is alleged and proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of any of those persons prosecuted.
16. In this view of the matter, in the case before hand, there is no allegation in the complaint that cheques were issued by Mr. R.K. Malhotra with consent and knowledge of petitioners, who were directors of the company. There is also no allegation that they are either in charge of the affairs of the company or they are aware of issuance of cheques, which were alleged to be dishonoured. Further, there is no allegation in the complaint that at the time of commission of the offence by the company, the accused were responsible to the company for the conduct of business. There is no averment about active role played by petitioners and the extent of their liability to conduct the affairs of the company or day to day control over the company. Mere bald statement in para No. 2 of the complaint does not help the complainant without specific and active role about the commission of offence.
17. As per statement of the complainant given in police on 13.3.2000, three cheques were issued by Mr. Rajkumar Malhotra under his signature and he assured the non-petitioner about sufficiency of amount in the bank account. In the court, it has been alleged by him that the petitioners are directors and doing business of the company. But, it has not been averred that at the time of commission of the offence either they were incharge of the company or aware of the issuance of cheques with their consent, connivance or knowledge. It has also not been mentioned, as stated above, that the petitioners were responsible to the company for its conduct. No specific and active role has been assigned and averred in the complaint. The judgments cited by the learned counsel for the non -petitioners are distinguishable on facts.
18. In the case of S.P. Subramaniam v. Vasavi Cotton Traders and Anr. (supra) reading of the complaint prima facie disclosed that the petitioner were the directors of the company and the cheques were issued with their consent and knowledge.
19. Similarly, in the case of Rohinton Noria v. NCC Finance Ltd. Hyderabad and Anr. (supra) the complainant came with a case that the petitioner, who is ordinary director is also incharge of and responsible to the affairs of the company.
20. The case of Mohd. Isaq Gulsani v. J. Rajamouli and Anr. (supra) is also distinguishable On facts. In that case, the question was related to the liability of the President of the Society and it was held that mere omission to array society as an accused, President who was independently liable could not escape liability.
21. The Apex Court in Anil Hada''s case (supra) has held that prosecution of company is not sine-qua-non for prosecuting its directors and as such it is also distinguishable on facts.
22. As far as the case of D.R. Gupta v. State (supra) is concerned, it is also distinguishable on facts. The case was related to question of discharge from their criminal liability arising out of dis-honour of cheque regarding adjustment of the amount.
23. In the case of Pritama Reddy and Ors. v. Charminar Co- operative Urban Bank Ltd. by its special power of Attorney and Anr. (supra), there were specific averments that petitioners-directors were incharge of and were responsible to affairs of the company and the cheques were given with their consent and knowledge.
24. In the case of Trichur Cotton Mills Ltd. and Anr. v. Devarasetty Cotton (New Firm) and Anr. (supra), there was no specific allegation in complaint that the accused was incharge of and responsible to business of the company and he was described as Managing Director. It was held that prima facie Managing Director by nature of very obligation is presumed to be incharge of and responsible to company for business of company.
25. In the case of Rajneesh Aggarwal v. Amit J. Bhalla (supra), the question was regarding the notice to the Director, who signed the cheque and it was held that the notice was proper.
26. In the case before hand, the notice has been given only to the company. Therefore, the judgments relied by the learned counsel for the non-petitioners are distinguishable on facts. Even otherwise, a decision is an authority for which it is decided and not what can logically be deduced therefrom. A little difference in facts or additional facts may make a lot of difference in the precedential value of a decision, as has been held in Bhavnagar University v. Palitana Sugar Mills Pvt. Ltd. and Ors. In the said case, the Apex Court relied two previous judgments given in Delhi Administration (NCT of Delhi) v. Manoharlal and Haryana Finance Corporation and Anr. v. Jagdamba Oil Mills and Anr.
27. Therefore, without going into the meticulous examination of the material on record, there is no prima facie case for taking cognizance u/s 138 read with 141 of the Act is made out against the petitioners. Accordingly, the impugned order is illegal, incorrect and improper and is liable to be set aside and is hereby set aside. The petition is allowed.
