Section 138, 141 of the negotiable instruments act
Rahul malhotra
(Querist) 31 August 2017
This query is : Resolved
Dear Sir/Madam,
I have a query that i was a employee in the company as a Company Secretary and i worked there one and half years. As a Company Secretary i was only responsible to perform the task related with Companies Act and they have assigned to me the same. I left my job in June 2016 but after a year i have received a summon against me regarding dishonored of cheque. The Petitioner has filed case against the Company, all the director and CS of the company and also filed relief sought from all the accused including CS.
During my tenure, the company has not appointed me as authorised signatory to sign the cheque of any bank and i have not signed any cheque in my tenure. i was just an employee of the company not a director.
So my question are:-
1. can the petitioner legally filed case against me?
2. I have to withdraw my name from the case. How?
I request you to please advice me in this case with the judgement.
Thanks
Sudhir Kumar, Advocate
(Expert) 01 September 2017
Criminal case is never against a body corporate (i.e. company) it is against a human being only [ Mr _, s/o_________ cast _______ aged _________ r/o ______].
So come out of misconcept. You are entitled to obey the directions of employer and commit a crime and them say that you were only employee.
If you have signed the cheque then make sure that the amount of dishonoured cheque is paid to the person and avoid going to Jail.
Guest
(Expert) 01 September 2017
Since you have stated, "the company has not appointed me as authorised signatory to sign the cheque of any bank and i have not signed any cheque in my tenure," you need not worry about the case. Only the Directors and the signatories can be made liable for the offense. Since you seemed to have been made party to the case, being a secretary of the company, you have the need to appear in the court to clear the clouds on examination/ cross-examination when due. However, there being no liability on your part, better if you hire service of some lawyer to get your name removed from the case by adopting due legal process. Otherwise, you will be required to attend each and every hearing till the case is decided.
Advocate Bhartesh goyal
(Expert) 01 September 2017
Neither you were authorised signatory of cheque nor you signed the cheque ,inspite of that you have been impleaded as accused and court has taken the cognizience of offence of cheque bouncing against you so you have to file petition u/s 482 of Cr.P.C before High Court for quash of cognizence .
Rajendra K Goyal
(Expert) 01 September 2017
You asked:
1. can the petitioner legally filed case against me?
Reply:
As the case has been filed against you, no other alternate but to appear and defend the case against you. You may approach high Court for quash.
Rajendra K Goyal
(Expert) 01 September 2017
You asked:
2. I have to withdraw my name from the case. How?
Reply:
Either defend the case against you or proceed to get it quashed through High Court.
Advocate/CS Sanjeev Kataria
(Expert) 02 September 2017
Dear Rahul, you are arrayed as a necessary party by virtue of section 141, as advised by experts, you can continue appearing before the trial court and put your defence, else get it quashed under 482 Cr. P.C.
Dr J C Vashista
(Expert) 03 September 2017
If you are impleaded as an accused you have no alternative but to appear before magistrate and seek bail as well as exemption from appearance on all dates.
Meanwhile get your name removed from the complaint case by filing criminal miscellaneous petition u/s 482 Cr PC before High Court.
Sudhir Kumar, Advocate
(Expert) 03 September 2017
you have not signed the cheque as yous aid.
but
a crime has been committed (138 NI Act + 420 IPC). Prime accused may be the person who signed cheque. But what about those who abetted the crime by instigation/connivance.
So please ensure that the amount written in cheque is paid to the person (either by company or from your individual/ collective pocket) so that the case is dropped.
rahul abhyankar
(Expert) 11 September 2017
U HAVE STRONG CASE, APPEAR BEFORE COURT AND SHOW THE COURT THAT THE CHEQUE IS NOT SIGNED BY U, IF ITS CASE OF 138 NI ACT. IF THE 420 CHEATING CASE IS FILED THEN YOU HAVE TO APPOINT A LOCAL LAWYER AND DEFEND IT.
