Dishonour of cheque issued on behalf of a company : Negotiable Instruments Act, 1881 S. 141 and S. 138.

The appellant filed a complaint u/s.138 read with S. 141 of
the Negotiable Instruments Act, 1881, against the accused Company on whose
behalf the bounced cheque was issued. The cheque in question was a post-dated
cheque. The cheque was signed by the respondent in April 1995, when he was
Director of the accused Company, but the cheque was post-dated as 28-1-1998.
However, before bouncing of the cheque in January 1998 or thereafter, the
respondent had already resigned from the accused Company on 25-5-1996, and had
also given intimation to all concerned including the appellant. Despite this
intimation the respondent was impleaded as co-accused, but no specific averment
was made in the complaint, as to in what capacity he was being impleaded.

The Trial Court accepted the respondent’s plea that he should
be deleted from the array of the accused persons for the reason that he had
already resigned from directorship when the cheque bounced. The High Court also
dismissed the appellant’s criminal revision petition.

The Apex Court held that S. 141 of the Act provides for a
constructive liability. A legal fiction has been created thereby. The statute
being a penal one should receive strict construction. It requires strict
compliance with the provision. Specific averments in the complaint petition so
as to satisfy requirements of S. 141 of the Act are imperative. Mere fact that
at one point of time some role had been played by the accused may not by itself
be sufficient to attract the constructive liability u/s.141 of the Act.

A person who had resigned within the knowledge of the
complainant in 1996 could not be a person in charge of the Company in 1998 when
the cheque was dishonoured. He had no say in the matter of seeing that the
cheque is honoured. He could not ask the Company to pay the amount. He as a
director or otherwise could not have been made responsible for payment of the
cheque on behalf of the Company or otherwise.

When post-dated cheques are issued and the same are accepted,
although it may be presumed that the money will be made available in the bank
when the same is presented for encashment, but for that purpose, the harsh
provision of constructive liability may not be available except when an
appropriate case in that behalf is made out.

S. 140 of the Act cannot be said to have any application
whatsoever in this case. Reason to believe on the part of a drawer that the
cheque would not be dishonoured cannot be a defence. But, then one must issue
the cheque with full knowledge as to when the same would be presented. It
appears to be a case where the appellant has taken undue advantage of the
post-dated cheques given on behalf of the Company. The statute does not envisage
misuse of a privilege conferred upon a part to the contract. Accordingly the
appeal was dismissed.