Case Note & Summary
The applicant preferred a criminal application under Section 482 of the Code of Criminal Procedure, 1973, challenging the proceedings in a complaint under Section 138 of the Negotiable Instruments Act, 1881, pending before the Metropolitan Magistrate. The complaint related to dishonour of a cheque issued towards discharge of liability for advertisement publication services. The applicant contended that he was neither a signatory to the cheque nor a director or CFO of the accused company, and that the complaint lacked specific averments to invoke vicarious liability under Section 141 of the NI Act. It was argued that the trial court mechanically issued process without proper inquiry under Section 202 CrPC, as the applicant resided outside its territorial jurisdiction. The respondent argued that the complaint, statutory notice, and verification statement contained sufficient averments that the applicant was involved in the day-to-day affairs and acted in connivance, and that evidence including emails would establish his role. The arguments focused on the mandatory requirements of Section 202 CrPC, the necessity of application of mind in summoning, and the standard for vicarious liability. The judgment records submissions of both sides but does not contain the court's analysis or final decision, ending abruptly before any determination.
Issue of Consideration
Whether the criminal complaint under Section 138 NI Act and the summons issued against the applicant should be quashed for lack of specific averments regarding vicarious liability under Section 141 NI Act and non-compliance of inquiry under Section 202 CrPC.
Law Points
- Vicarious liability under Section 141 NI Act requires specific averments
- Section 202 CrPC inquiry mandatory when accused resides beyond court's jurisdiction
- Summoning order must reflect application of mind
- Complaint under NI Act must contain explicit role of accused
- Authorized representative can file complaint if authorized by board resolution
Case Details
2017 LawText (BOM) (10) 61
Criminal Application No.1248 of 2016
Mr.Ashwin Vaish i/b. Mr.Balvendra Singh, Advocate for the Applicant; Mr.Mahendra V. Swar, Advocate for Respondent No.1; Mrs.P.P. Shinde, APP for Respondent – State.
Mediascope Publicitas (India) Pvt. Ltd. & Anr.
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Nature of Litigation
Criminal application under Section 482 CrPC seeking quashing of a complaint under Section 138 NI Act and the process issued therein.
Remedy Sought
Applicant seeks quashing of Criminal Complaint No.1194/SS/2015 pending before the Metropolitan Magistrate 33rd Court, Ballard Pier, Mumbai, and the process issued against him.
Filing Reason
Applicant claims he is not connected with the accused company, is not a signatory, CFO, or director, had no role in the transaction, and the trial court mechanically issued process without proper inquiry under Section 202 CrPC or application of mind regarding vicarious liability.
Previous Decisions
The trial court issued process on 10-07-2015 after recording verification and conducting inquiry under Section 202 CrPC. A proclamation was issued against the applicant on 18-03-2016 as he did not appear after service of summons.
Issues
Whether the complaint and process are liable to be quashed for lack of specific averments to invoke vicarious liability under Section 141 NI Act against the applicant.
Whether the trial court complied with the mandatory inquiry under Section 202 CrPC when the accused resides outside jurisdiction.
Whether the summoning order reflects application of mind as required by law.
Submissions/Arguments
Applicant is not a signatory, CFO, or director of accused company and has no role in the transaction; the complaint lacks specific averments to make him vicariously liable under Section 141 NI Act.
The trial court mechanically issued process without application of mind; the verification statement did not particularize the applicant's role and the authorized representative had no personal knowledge.
The inquiry under Section 202 CrPC was not conducted in proper perspective; mere recording of verification is not sufficient compliance when accused resides outside jurisdiction.
The authorized representative was not a witness to the transactions and thus the complaint is not maintainable.
Respondent No.1 contended that the complaint, notice, and verification statement contain sufficient averments that the applicant was looking after day-to-day affairs and acted in connivance with other accused, thus satisfying Section 141 NI Act.
The applicant is absconding and proclamation has been issued; he has been impleaded in multiple complaints, and there is evidence including emails showing his involvement.
Judgment Excerpts
the process was issued against the accused for an offence punishable under Section 138 read with 141 of the Negotiable Instruments Act.
The applicant is not connected with accused no.1 company in any manner. He is neither the signatory, nor CFO or director of the respondent no.1 company.
the applicant has not been impleaded as an accused in the complaint as director of the accused no.1, but, as one of the person who was looking after the day to day affairs of accused no.1.
Procedural History
Complaint CC No.1194/SS/2015 filed on 14-05-2015 before Metropolitan Magistrate 33rd Court, Ballard Pier, Mumbai. Verification statement recorded on 09-07-2015. Affidavit in compliance of Section 202 CrPC filed. Process issued on 10-07-2015. Proclamation issued against applicant on 18-03-2016. Applicant filed Criminal Application No.1248 of 2016 under Section 482 CrPC before Bombay High Court seeking quashing. Judgment reserved on 01-09-2017 and pronounced on 13-10-2017.
Acts & Sections
- Code of Criminal Procedure, 1973: Section 482, Section 202
- Negotiable Instruments Act, 1881: Section 138, Section 141
