TaxTMI 
TaxTMI 
TaxTMI 
2018 (7) TMI 2201
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....e, Bulandshahar in Criminal Revision No. 86 of 2018 (Usher Agro Ltd. Vs. State of U.P. and another) as well as the summoning order dated 10.04.2017 passed by the Additional Chief Judicial Magistrate, Anoopshahar, District-Bulandshahar in Complaint Case No. 1221 of 2016 (Smt. Kumkum Vs. Manoj Pathak) under Section 138 N.I. Act, P.S.-Anoopshahar District-Bulandshahar. 4. Criminal Misc. Application No. 13085 of 2018 has been filed by Manoj Pathak challenging the order dated 18.08.2017 passed by the Sessions Judge, Bulandshahar in Criminal Revision No. 344 of 2016 (Manoj Pathak Vs. State of U.P. and another) as well as the summoning order dated 28.06.2016 passed by the Additional Chief Judicial Magistrate, Anoopshahar, District-Bulandshahar under Section 138 N.I. Act, P.S.-Anoopshahar District-Bulandshahar. 5. Brief facts giving rise to the present criminal misc. applications are that a business deal took place between the Company, namely, M/s. Usher Agro Pvt. Ltd. (hereinafter referred to as the Company) and M/s. Balaji Traders Navin Mandi, Anoopshahar, Bulandshahar of which the opposite party no. 2, Smt. Kumkum wife of Vipin Kumar is the sole proprietor. As per the said deal, the C....
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.... 13. From the perusal of the Memo of Criminal Revision filed by the applicant Manoj Pathak it is apparent that the summoning order dated 28.06.2016 was challenged on five grounds. Firstly, it was pleaded that the summoning order dated 28.06.2016 is unjust and illegal. Secondly, it was submitted that the summoning of any accused in a criminal case cannot be done casually. The same can be done only after the exercise of due diligence taking into consideration the facts of the case and the relevant law. However, the Magistrate while passing the impugned summoning order completely ignored the same. Next it was pleaded that the complainant in his complaint has alleged that there was commercial relationship in between the complainant and the Company of which the revisionist Manoj Pathak is the Director. The disputed cheque was given by the Company to the complainant, and therefore, the provisions of Section 141 N.I. Act are fully applicable. However, the Company namely M/s. Usher Agro Ltd. has not been impleaded as an accused/opposite party in the complaint filed by the opposite party no. 2 herein namely Smt. Kumkum nor any notice was given by the complainant to the Company. The Magistra....
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....summoned accused/opposite party namely M/s. Usher Agro Ltd. challenged the summoning order dated 10.04.2017 passed by the Magistrate whereby the Company, namely, M/s. Usher Agro Ltd., was summoned under Section 319 Cr.P.C. by filing a criminal revision before the District Judge, Bulandshahar. The same was registered as Criminal Revision No. 86 of 2018 (Usher Agro Ltd. Vs. State of U.P. And another). 18. From the perusal of the memo of revision, it is apparent that the aforesaid criminal revision was filed on the grounds that the impugned summoning order is illegal and arbitrary. Secondly, the application under section 319 Cr.P.C. was not maintainable as it had been filed at inappropriate stage. Therefore, the Magistrate by taking cognizance on such application has failed to consider the relevant law on the subject. Thirdly, it was pleaded that the trial of the complaint case has not yet commenced, therefore, neither any evidence has come forward nor the statement of the complainant has been recorded. In spite of the aforesaid, the Magistrate, without judicious and legal use of his discretion in a mechanical manner, has passed the impugned order. Fourthly, it was submitted that the....
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....dated 28.06.2016 passed by the Magistrate summoning the original accused/opposite party namely Manoj Pathak and the order dated 18.08.2017 passed by the revisional court dismissing the criminal revision filed by the original accused/opposite party no. 1 in the complaint challenging the summoning order dated 28.06.2016, Criminal Misc. Application No. 13085 of 2018 (Manoj Pathak Vs. State of U.P. And another) has been filed before this Court. 21. Mr. V.P. Srivastava, the learned Senior Counsel assisted by Mr. Ansul Rajan Srivastava in challenge to the impugned orders submitted that the summoning order dated 28.06.2016 passed by the Magistrate summoning the opposite party no. 1, Manoj Pathak is manifestly illegal. According to the learned Senior Counsel, the disputed cheque dated 18.01.2016 was issued on behalf of the Company, namely, M/s. Usher Agro Ltd., and was signed by the opposite party no. 1, Manoj Pathak as the authorized signatory of the Company being the Director. On the aforesaid factual premise, he further submits that as per the mandate of Section 141 of the N.I. Act, the Company M/s. Usher Agro Ltd., was a necessary and a proper party in the complaint filed by the oppos....
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....ge when complicity of person other than those named as offender comes to light from the evidence recorded in the course of enquiry or trial. Reliance in this regard is placed upon the judgment of the Apex Court in the case of Kishun Singh and Ors. Vs. State of Bihar, 1993 (2) SCC 16. 25. Mr. Rahul Sripat, Advocate assisted by Mr. Amitabh Agarwal and Ishir Sripat appearing for the opposite party no. 2 vehemently opposed the submissions raised by the learned Senior Counsel for the applicants. According to the learned counsel appearing for the opposite party no. 2, the case in hand is squarely covered by the judgment of the Madhya Pradesh High Court in the Case of Manish Kalani and another Vs. Housing and Urban Development Corporation Ltd. (HUDCO) and another, M.Cr.C. No. 16285 of 2016 decided on 30.01.2018. It is next submitted that the liability arising out under the disputed cheque has not been disputed. Only technical pleas regarding the maintainability of the proceedings initiated by the complainant before the court below have been raised. He, therefore, submits that the present criminal misc. applications filed by the accused are liable to be dismissed by this Court. 26. He ha....
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.... (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. 141. Offences by companies.--(1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this subsection shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence: [Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution u....
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....ontemplated. The prosecution is initiated on the basis of a written complaint made by the payee of a cheque. Obviously such complaints must contain the factual allegations constituting each of the ingredients of the offence under Section 138. Those ingredients are: (1) that a person drew a cheque on an account maintained by him with the banker; (2) that such a cheque when presented to the bank is returned by the bank unpaid; (3) that such a cheque was presented to the bank within a period of six months from the date it was drawn or within the period of its validity whichever is earlier; (4) that the payee demanded in writing from the drawer of the cheque the payment of the amount of money due under the cheque to payee; and (5) such a notice of payment is made within a period of 30 days from the date of the receipt of the information by the payee from the bank regarding the return of the cheque as unpaid. It is obvious from the scheme of Section 138 that each one of the ingredients flows from a document which evidences the existence of such an ingredient. The only other ingredient which is required to be proved to establish the commission of an offence under Section 138 is that insp....
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....e of the provisions of sections 138, 141 and 142 of the N.I. Act, the scheme of the Act as explained by the Apex Court, the facts of the case as are on the record, the submissions raised by the counsel for the parties, the court finds that the following questions arise for determination in the present criminal misc. applications:- (I) Whether in a complaint filed under Section 138 N.I. Act in respect of an offence committed by a company, the company is a necessary and proper party, in view of Section 141 of the N.I. Act or not. (ii) Whether the failure on the part of the complainant to implead the company as an accused/opposite party in the complaint is fatal and incurable. (iii) Whether in the absence of any specific provision in the N.I. Act or in the Code of Criminal Procedure regarding impleadment, the court can summon the additional accused or not. (iv) Whether the summoning of a non applicant as an accused can be done only after the court passing the summoning order, has itself recorded the evidence in the case. 31. The first question is taken first. Section 141 of the N.I. Act which has already been quoted herein above, deals with the offence committed by the company un....
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....g is recorded against it, it would create a concavity in its reputation. There can be situations when the corporate reputation is affected when a director is indicted. 43. In view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the dragnet on the touchstone of vicarious liability as the same has been stipulated in the provision itself. We say so on the basis of the ratio laid down in C.V. Parekh (supra) which is a three-Judge Bench decision. Thus, the view expressed in Sheoratan Agarwal (supra) does not correctly lay down the law and, accordingly, is hereby overruled. The decision in Anil Hada (supra) is overruled with the qualifier as stated in paragraph 37. The decision in Modi Distilleries (supra) has to be treated to be restricted to its own facts as has been explained by us hereinabove." 32. Thus the complaint filed under section 138 N.I. Act, in respect of an offence committed by a company i.e. where the cheque is issued on behalf of the company would not be maintainable if the co....
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....ce could be caused to the other side, notwithstanding the fact that there is no enabling provision in the Code for entertaining such amendment, the court may permit such an amendment to be made. 23. Although, non-applicant No. 1 filed the application before the trial Court under Section 319 of the Cr.P.C. read with Section 141 of the Act, wherein neither in Section 141 of the Act, nor in Section 319 of the Cr.P.C. provisions for permitting complainant to amend the complaint are mentioned, but it is a settled position of law that a mere non-mentioning or wrong mentioning of a provision in an application is not a ground to reject an application as held by the Hon'ble Apex Court in the case of Adv. Kaptan on Challamance Huchha Gowda v. M.R. Tirumala, 2004) 1 SCC 453. 24. Although there is no provision in the Act and Code of Criminal Procedure to permit the applicant to amend the complaint, but there is no bar in the Code of Criminal Procedure as well as in the Negotiable against permitting the complainant to amend his complaint. Where, there is no bar in the Act and in the Code of Criminal Procedure, this Court in the interest of justice may permit the complainant to amend the c....
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....whichever is earlier; (4) that the payee demanded in writing from the drawer of the cheque the payment of the amount of money due under the cheque to payee; and (5) such a notice of payment is made within a period of 30 days from the date of the receipt of the information by the payee from the bank regarding the return of the cheque as unpaid. It is obvious from the scheme of Section 138 that each one of the ingredients flows from a document which evidences the existence of such an ingredient. The only other ingredient which is required to be proved to establish the commission of an offence under Section 138 is that in spite of the demand notice referred to above, the drawer of the cheque failed to make the payment within a period of 15 days from the date of the receipt of the demand. A fact which the complainant can only assert but not prove, the burden would essentially be on the drawer of the cheque to prove that he had in fact made the payment pursuant to the demand. 33. By the nature of the offence under Section 138 of THE ACT, the first ingredient constituting the offence is the fact that a person drew a cheque. The identity of the drawer of the cheque is necessarily require....
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....omplaint at the time of its filling. It is the fault of the trial Court which only took cognizance against the Director and did not take cognizance against the company, which can be cured by the trial Court at any time. There is no bar under Section 190 of the Cr.P.C. that once the process is issued against some accused, on the next date, the Magistrate cannot issue process to some other person against whom there is some material on record." 36. Upon perusal of the complaint filed by the complainant opposite party No. 2, it is apparent that it has categorically been averred that the cheque in question has been issued by the accused as the authorized signatory of the company. In the prayer clause, it has been further mentioned that the accused persons be summoned and punished accordingly. Thus the recital in the complaint clearly goes to show that right from the beginning the complaint filed by the complainant before the Magistrate was not only against the Director namely Manoj Pathak, but also against the company i.e. M/s. Usher Agro Pvt. Ltd. Therefore, solely on the ground that when the complaint was filed the name of the company was not mentioned as an accused, it cannot be sai....
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....ated 10.4.2017 passed by the Magistrate cannot be said to be illegal. 38. Thus, upon perusal of the aforesaid paragraphs, there is no iota of doubt that in a case under section 138 of the N.I. Act, if the company on whose behalf the disputed cheque was issued was not impleaded, can be subsequently impleaded. However, the only rider to the aforesaid proposition is that the material particulars in respect of the same should be present in the complaint filed under section 138 of the N.I. Act or else the same being barred by limitation cannot be permitted at a belated stage. 39. From the perusal of the complaint filed by the complainant/opposite party No. 2, the court finds that the necessary particulars with regard to the commission of the offence under section 138 N.I. Act as explained by the Apex Court in paragraph 32 of the judgment in the case of N. Harihara Krishnan Vs. Thomas, AIR 2017 SC 4125 are duly satisfied. Therefore, in the facts of the present case, the notice under section 138 of the N.I. Act issued on behalf of the complainant to the opposite party No. 2 who is the Managing Director/Authorized Signatory of the company shall also be deemed to be a notice to the compan....
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....n addition to the aforesaid, an ancillary question shall also arise as to whether the Court below could have summoned the applicant M/s. Usher Agro Ltd, even when the scope of section 319 Cr.P.C. is limited only to post cognizance stage when complicity of person other than those named as an offender comes to light from the evidence recorded in the course of enquiry or trial. 41. The answer to the said question has been considered in paragraphs 22, 23 and 26 of the judgment in Manish Kalani (Supra) case and therefore, the issues settled therein need not be repeated again. 42. As already noted above, there is no provision in the N.I. Act or the Code of Criminal Procedure which prohibits the impleadment of a party to the complaint as an additional accused/opposite party. Similarly, there is no provision either under the N.I. Act or the Code of Criminal Procedure providing for impleadment of a person as an accused/opposite party in a complaint. 43. Section 319 of the Cr.P.C. would operate in a situation where during the trial and enquiry, it appears to the trial Court whether as a Magistrate or a Sessions Judge that some other persons are also involved in the commission of the offen....