Jitendra Mangala vs State Of U.P. And Another
2024 Latest Caselaw 18339 ALL

Allahabad High Court

Jitendra Mangala vs State Of U.P. And Another on 22 May, 2024

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?A.F.R. (Neutral Citation No. - 2024:AHC:93247)
 
Court No. - 92
 
Case :- APPLICATION U/S 482 No. - 6343 of 2024
 
Applicant :- Jitendra Mangala
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Bhuvnesh Kumar Singh,Sangeeta Shukla
 
Counsel for Opposite Party :- G.A.,Sushil Kumar Chaturvedi
 

 
Hon'ble Arun Kumar Singh Deshwal,J.
 

1. Heard Sri Bhuvnesh Kr. Singh, learned counsel for the applicant, Sri Sushil Kr. Chaturvedi, learned counsel for opposite party No.2 and Sri Rajeev Kr. Singh, learned A.G.A. for the State.

2. The instant application has been filed seeking quashing of entire proceeding of Complaint Case No. 14 of 2018 (Smt. Manju Sharma vs. Jitendra Mangala), u/s 138 N.I. Act, P.S. Tajganj, District Agra, pending before the Additional Court No.1, Agra as well as summoning order dated 1.9.2018.

3. The factual matrix giving rise to the present case are that the complaint was filed by opposite party No.2 against the applicant u/s 138 N.I. Act. In the aforesaid complaint, it was mentioned that cheque was issued by M/s Prerana Construction Pvt. Ltd., but only the present applicant who is the proprietor of the company M/s Prerana Construction Pvt. Ltd. was impleaded as accused. The court below after perusal of the record, summoned the present applicant by summoning order dated 1.9.2018 and by way of present application, the proceeding of aforesaid complaint case is under challenge.

4. Learned counsel for the applicant submits that it is undisputed that the cheque in question was issued on behalf of the company M/s Prerana Construction Pvt. Ltd., but while filing the impugned complaint, the company in question was not impleaded as accused. Therefore, the proceeding cannot be proceeded against the accused who is the proprietor of the company who is vicariously liable only when the company is impleaded as a party in the complaint. Therefore, the impugned complaint is barred by Section 141 N.I. Act. Learned counsel for the applicant also argued that in case paragraphs No. 6 of 13 of Himanshu vs. B. Shivamurthi and another; (2019) 3 SCC 797, Hon'ble Apex Court observed that the complaint, in absence of the company, is defective and at this stage company cannot be arrayed. Therefore, fresh complaint is also barred because fresh notice is required to be given to the company which is necessary for arising of the cause of action.

5. per contra learned counsel for opposite party No.2 and learned A.G.A. submitted that the cheque in question was issued on behalf of the company by the applicant, therefore, he is personally liable, therefore, there is no illegality in the summoning order and the impugned proceeding.

6. Considering the rival submissions of the parties and on perusal of the record, it appears that the cheque in question was issued on behalf of the company M/s Prerana Construction Pvt. Ltd. to opposite party No.2, but while filing the impugned complaint, opposite party No.2 did not implead the company as accused which is the basic requirement u/s 141 N.I. Act.

7. The Apex Court also in the cases of Aneeta Hada vs. M/S God Father Travels and Tours Pvt. Ltd.; (2012) 5 SCC 661, Himanshu vs. B. Shivamurthi and another; (2019) 3 SCC 797, Dilip Hariramani vs. Bank of Baroda; 2022 LiveLaw (SC) 457 as well as N. Harihara Krishnan vs. J. Thomas 2018 (3) SCC 663 observed that without impleading the body corporate which includes the company itself, proceeding u/s 141 N.I. Act cannot be proceeded.

8. So far as the contention of learned counsel for the applicant that fresh complaint after impleading the company is also barred because Hon'ble Apex Court in the case of Himanshu vs. B. Shivamurthi (supra) has observed that in absence of notice of demand, being served on the company, the company cannot be arrayed as accused, is concerned, in the case of Himanshu vs. B. Shivamurthi (supra) the issue was whether on objection raised by the accused that company was not impeaded as party in the complaint filed for dishonoring of the cheque on behalf of the company but the High Court has permitted to implead the company and Hon'ble Court observed that as the statutory demand notice was not issued to the company, therefore, at this stage company cannot be proceeded by impleading the same in the complaint. Paragraphs No. 6, 11 & 13 of the Himanshu vs. B. Shivamurthi (supra) are being quoted as under:-

"6. The judgment of the High Court has been questioned on two grounds. The learned counsel appearing on behalf of the appellant submits that firstly, the appellant could not be prosecuted without the company being named as an accused. The cheque was issued by the company and was signed by the appellant as its Director. Secondly, it was urged that the observation of the High Court that the company can now be proceeded against in the complaint is misconceived. The learned counsel submitted that the offence under Section 138 is complete only upon the issuance of a notice of demand and the failure of payment within the prescribed period. In absence of compliance with the requirements of Section 138, it is asserted, the direction of the High Court that the company could be impleaded/arraigned at this stage is erroneous.

11. In the present case, the record before the Court indicates that the cheque was drawn by the appellant for Lakshmi Cement and Ceramics Industries Ltd., as its Director. A notice of demand was served only on the appellant. The complaint was lodged only against the appellant without arraigning the company as an accused.

13. In the absence of the company being arraigned as an accused, a complaint against the appellant was therefore not maintainable. The appellant had signed the cheque as a Director of the company and for and on its behalf. Moreover, in the absence of a notice of demand being served on the company and without compliance with the proviso to Section 138, the High Court was in error in holding that the company could now be arraigned as an accused."

9. In the case of Himanshu vs. B. Shivamurthi (supra) drawer of the cheque during the pendency of the proceeding before the Apex Court also deposited the entire cheque amount showing his bona fide which was also directed to be paid to the complainant at the time of disposal of the case. However, in the present case situation is totally different. In the impugned complaint, the applicant was not impleaded in his personal capacity but was impleaded as proprietor of the company M/s Prerana Construction Pvt. Ltd. and notice was also served upon the company M/s Prerana Construction Pvt. Ltd. through the applicant, being its proprietor/executive director. It is not in dispute that the applicant is active director of the company in question as per the allegation of the complaint and also involved in its day to day business. Therefore, notice upon the applicant, being director of the company, will be deemed to be notice upon the company itself.

10. Therefore, facts of the Himanshu vs. B. Shivamurthi (supra) are different from the present case. Therefore, ratio of Himanshu vs. B. Shivamurthi (supra) will not be applied in the present case. Even otherwise, the applicant can raise all his defence during trial.

11. Hon'ble Apex Court in the case of NEPC Micon Ltd. vs. Magma Leasing Ltd.; 1999 (4) SCC 253, observed that it is the duty of court to interpret Section 138 N.I. Act consistent with the legislature intent and purpose so as to suppress the mischief and advance the remedy. Therefore, second complaint by impleading the company is not barred for bouncing of the cheque in question issued by the company M/s Prerana Construction Pvt. Ltd.

12. Even otherwise, the drawer of the cheque in the case of Himanshu vs. B. Shivamurthi (supra) deposited the cheque amount before Hon'ble Supreme Court, showing his bone fide. However, in the present case order sheet shows that though the complaint was filed in the year 2018, the applicant as well as his company tried their best to avoid facing trial, despite issuance of summons and bailable warrant, therefore, such type of drawer of cheque should not be allowed to take benefit of technicality at the cost of justice.

13. In view of the above legal position, the present complaint is not maintainable as the company M/s Prerana Construction Pvt. Ltd. was not impleaded as a party. In view of the above, the proceeding of Complaint Case No. 14 of 2018 (Smt. Manju Sharma vs. Jitendra Mangala), u/s 138 N.I. Act, P.S. Tajganj, District Agra is hereby quashed.

14. Accordingly, the application is allowed.

15. However, opposite party No.2 is permitted to filed fresh complaint by impleading the company, namely, M/s Prerana Construction Pvt. Ltd., within a period of one month.

Order Date :- 22.5.2024/Vandana