2024 (5) TMI 1442 - HC - Indian Laws

Director's impleadment under Section 319 CrPC upheld in cheque dishonour case without separate statutory notice requirement

BHORANIYA DAMJIBHAI TAPUBHAI Versus SUMERU TRADELINK PVT. LTD. THRO DHRUMIL DEEPAKKUMAR SHAH & ANR.

Gujarat HC dismissed application challenging impleadment of director under Section 319 CrPC in cheque dishonour case. Court held that director being ... Dishonour of cheques - Two directors being a signatory of the cheques, has committed offence - Impleadment of the applicant as accused u/s 319 of CrPC - Non-service of statutory notice u/s 138(b) of N.I. Act - Delay in filing the application u/s 319 of CrPC - HELD THAT:- It is not in dispute that the applicant was in charge of and responsible to the conduct of business and the cheques were issued by the company allegedly signed by the applicant herein. Therefore, mere non mentioning of the name of the applicant in the complaint cannot be absolved him of the responsibility of the company as he has issued the cheques in question. Thus, therefore, the technical issue of non-serving of notice as contemplated u/s 138 (b) has no any merits as the principal accused-company and other two directors were served with statutory notice and in view of the status of the applicant in the company and being a signatory of the cheques was deemed to be aware of the receipt of the notice by the company. Thus, the ratio of the Apex Court laid down in Krisha Texport and Capital Markets [2015 (6) TMI 344 - SUPREME COURT] and considering the peculiar facts and circumstances of present case, the prosecution against the applicant without serving the statutory notice is maintainable and trial court has rightly recorded the findings that, the notice to the applicant is not necessary and prosecution can be proceeded without it. The second contention raised is that, the impleadment of the accused u/s 319 of the CrPC for the offence punishable u/s 138 could not have entertained after the expiry of statutory period. When the application u/s 319 of CrPC was allowed, the trial court has not taken a cognizance of the offence. The contention with regard to limitation would be applicable only in case the court has taken cognizance of the offence. If the application of impleadment of the applicant would have filed after taking cognizance of the offence, then, the issue of limitation would come into picture. In the facts of present case, at the time of passing the order u/s 319, the trial court has not taken cognizance of the offence and at the enquiry stage, the application was entertained. Thus, before taking cognizance in terms of Section 142 of the N.I. Act, the trial court could implead the accused u/s 319 of CrPC and plea of limitation at that stage was not require to be considered nor it is applicable. Thus, this Court is of considered opinion that, the order passed by the trial court cannot be termed as unsustainable or abuse to the process of law which do not warrant any interference as no ground is made out to quash the same. Resultantly, the application stands dismissed. Rule is discharged. Issues Involved:1. Impleadment of the applicant as accused under Section 319 of Cr.P.C.2. Non-service of statutory notice under Section 138(b) of the N.I. Act.3. Delay in filing the application under Section 319 of Cr.P.C.Issue-wise Detailed Analysis:1. Impleadment of the Applicant as Accused under Section 319 of Cr.P.C.:The applicant, originally accused no.4, was impleaded by the Additional Judicial Magistrate Court, Ahmedabad (Rural), under Section 319 of Cr.P.C. during the course of enquiry. The trial court, based on evidence presented by the State Bank of India officer, found that the applicant was the authorized signatory of the cheques issued by Umiya Ceramics. Consequently, the complainant moved an application (Ex.13) to include the applicant as an accused. The trial court allowed this application on 21.05.2022, joining the applicant as accused no.4.2. Non-service of Statutory Notice under Section 138(b) of the N.I. Act:The applicant contended that no notice under Section 138(b) of the N.I. Act was served upon him, making his impleadment as accused legally unsustainable. The applicant relied on the Supreme Court's decision in Aneeta Hada & Ors. vs. Godfather Travels and Tours Pvt. Limited, which mandates notice to each director sought to be impleaded. However, the court noted that the Supreme Court in Krishna Texport & Capital Markets Limited vs. Ila A. Agrawal & Ors. held that individual notices to directors are not required if the company has been served. The trial court found that the applicant, being the signatory of the cheques, was deemed to be aware of the notice received by the company. Therefore, the non-service of notice to the applicant did not invalidate the prosecution.3. Delay in Filing the Application under Section 319 of Cr.P.C.:The applicant argued that the application Ex.13 was filed with a significant delay, making it unsustainable. The complaint was filed on 02.08.2014, and the criminal enquiry was registered in 2017. The application to implead the applicant was filed on 05.03.2022. The court noted that the trial court had not taken cognizance of the offence when the application under Section 319 was allowed. The issue of limitation would only apply if the court had taken cognizance of the offence. The cited case of N. Harihara Krishnan vs. J. Thomas was distinguished on its facts, as the trial court in that case had taken cognizance before the application under Section 319 was filed. Therefore, the plea of limitation was not applicable in the present case.Conclusion:The High Court concluded that the trial court's order was sustainable and did not constitute an abuse of the process of law. The application to quash the order was dismissed, and the rule was discharged. The court upheld the impleadment of the applicant as accused no.4, noting that the statutory notice to the company sufficed and that the delay in filing the application under Section 319 was not a ground for quashing the order.