IN THE HIGH COURT OF DELHI AT NEW DELHI + 1. CRL.M.C. 3693/2009
+ 2. CRL.M.C. 3200/2009
+ 3. CRL.M.C. 3678/2009
+ 4. CRL.M.C. 3694/2009
# HARDEEP SINGH NAGRA ..... Petitioner ! Through: Mr. Kuldeep Singh and Mr.
Harpreet Singh, Advs.
versus
$ STATE & ANR. ..... Respondent ^ Through: Mr.Jaideep Malik, APP * CORAM:
HON'BLE MR. JUSTICE V.K. JAIN
1. Whether the Reporters of local papers may be allowed to see the
judgment? No
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be
reported in the Digest? Yes : V.K. JAIN, J.
1. These are petitions under Section 482 of the Code of Criminal Procedure of
the Criminal Procedure Code, 1973 for quashing the criminal complaints
instituted against the petitioner under Section 138 of the Negotiable
Instruments Act.
2. A perusal of the complaints would show that besides M/s Routes Car Rentals
(India) Pvt. Ltd., three other persons, including the petitioner, have been
arraigned as accused. It has been alleged in paragraph 4 of the complaint that
accused no. 4 i.e Hardeep Singh Nagra had given personal guarantee to the
complainant in respect of repayment of loan mentioned in Crl.M.C.3693/2009
Page 1 of 3 the complaint.
3. The petitioner committed no offence punishable under Section 138 of
Negotiable Instruments Act, merely by giving guarantee for the loans taken by
accused No. 1 and 2. It is the drawer of the cheque who is liable to punishment
in case the cheque used by him towards discharge in full or in part of a debut
or liability, when presented to his bank for encashment, is dishonoured for
want of funds and he fails to make payment within 15 days of receipt of notice
envisaged in proviso (b) to Section 138 of the Act. There is no allegation in
the complaint that the cheques in question were drawn by the petitioner.
Section 138 of Negotiable Instruments Act does not fasten any criminal
liability on the guarantor of a loan secured or sought to be paid by way of a
cheque, which, when presented to the bank for encashment is dishonoured for
want of funds. Of course, the guarantor incurs a civil liability to pay the
debt guaranteed by him and his liability may be joint as well as several, but,
he is not liable to be punished under Section 138 of Negotiable Instruments
Act.
4. Though learned counsel for the petitioner fairly conceded that the
petitioner is a Director in M/s Routes Car Rentals (India) Pvt. Ltd which has
been arraigned as accused no. 1, there is no averment to this effect in the
complaint. If the Crl.M.C.3693/2009 Page 2 of 3 offence under Section 138 of
Negotiable Instruments Act is committed by a company, every person who is in-
charge of and responsible to the company for conduct of its business, at the
time of commission of offence, is also liable to punishment on account of
vicarious liability created by Section 141 of the Act. This is not the case of
the complainant that petitioner No.4 was also a person in-charge of and
responsible to the company M/s Routes Car Rentals (India) Pvt. Ltd. for conduct
of its business. In the absence of such an averment in the complaint it also
cannot be said that the petitioner is vicariously liable for the offence
committed by the company under Section 138 of the Negotiable Instruments Act on
account of dishonor of the cheques issued by it and its failure to make payment
even after the receipt of notice from the complainant.
5. Since no offence under Section 138 of Negotiable Instruments Act is made out
against the petitioner from the averments made, the criminal complaints subject
matter of these petitions to the extent they pertain to the petitioner are
hereby quashed. However, the trial will continue as far as the other accused
are concerned.
(V.K.JAIN)
JUDGE
JANUARY 21, 2010
