Allahabad High Court
Vivek Mani Tripathi vs State Of U.P. And Another on 18 November, 2024
Author: Saurabh Srivastava
Bench: Saurabh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:180456
Court No. - 85
Case :- MATTERS UNDER ARTICLE 227 No. - 11891 of 2024
Petitioner :- Vivek Mani Tripathi
Respondent :- State of U.P. and Another
Counsel for Petitioner :- Ashish Kumar Mishra
Counsel for Respondent :- G.A.
Hon'ble Saurabh Srivastava,J.
1. Heard Sri Anubhav Shukla and Sri Ashish Kumar Mishra, learned counsel for the petitioner and learned A.G.A. for the State.
2. The instant petition has been preferred challenging the order dated 25.01.2024 passed by learned Civil Judge(Jr. Division)/FTC Judicial Magistrate, Ghaziabad in Case No. 2383 of 2023 (Harish Kumar Advocate Vs. Vivek Mani Tripathi and another), under Section 138 N.I. Act through which petitioner has been summoned.
3. On the ground that neither the petitioner was the executor of instrument nor he was having any role in the firm which solely belongs to one Manish Jaiswal preferred Criminal Revision No. 165 of 2024 (Vivek Mani Tripathi Vs. Harish Kumar Advocate), but the same was also dismissed vide order dated 14.08.2024 by way of affirming the order dated 25.01.2024 passed by learned concerned Magistrate.
4. While assailing both the orders which impugned the present petition learned counsel for the petitioner submitted that once it is crystal clear from the documents of firm that is a proprietorship firm and instrument executed was also not signed by the petitioner under any capacity related to the firm, order dated 25.01.2024 is nothing but to drag the petitioner into unwarranted criminal litigation.
5. Learned counsel for the petitioner submitted that this case is squarely covered with judgment rendered by Hon'ble Apex Court in case of Aneeta Handa Vs. Ms. Godfather Travels and Tours Pvt. Ltd (2012) 5 SCC 661 wherein it has been held that if any transaction took place between any person and company/firm, the company/firm has to be a mandatory party, if any, proceeding initiated under Section 138 N.I. Act and in that case other than the person who executed the instrument can be summoned under the same proceeding, in the instant matter it is apparent from the memo of complaint that only proprietor of the firm alongwith petitioner have been arrayed as a party but there is no specific mention of firm being the legal heirs as the necessary party in the proceeding initiated at the behest of respondent no. 2 before learned court concerned.
6. Learned counsel for the petitioner also submitted that these grounds raised before learned court of Magistrate and before the learned revisional court but unfortunately both the learned courts have not paid any heat to the same and as such both the orders impugned in the present petition are highly illegal and not sustainable in the eye of law.
7. After hearing detailed argument raised by learned counsel for the petitioner order put under challenged is on the basis of confined question of law that whether the person other than proprietor can be summoned when firm/company is not party in the proceeding initiated under section 138 N.I. Act and as such process for issuing notices against the respondent no. 2 is hereby dispensed with.
8. It is apparent from the records appended alongwith the writ petition that petitioner is neither executor of the instrument nor related to the firm, although on the specific allegation which has been put forward at the time of institution of proceeding under section 138 N.I. Act, it was submitted by learned counsel for the respondent no. 2 that the initiator of the matter which culminated into some agreement between the parties wherein certain amount was payable by one Sri Manish Jaiswal being the proprietor of the firm, the petitioner cannot be held liable for extending any payment arising thereof. Although copy of the compromise/agreement has not been appended alongwith the petition, in any case, if name of the petitioner is available in compromise in that case also in absence of any specific array of party being firm at the time of institution of proceeding under section 138 N.I. Act, the petitioner cannot be summoned.
9. In view of aforementioned discussion related to the facts and illegality involved in the order which impugned the present petition, both the orders dated 25.01.2024 and 14.08.2024 passed by learned Civil Judge(Jr. Division)/FTC Judicial Magistrate, Ghaziabad and learned Additional District & Session Jude, Court No. 16 Ghaziabad respectively are hereby set aside.
10. Matter is remitted back to the learned court of Civil Judge(Jr. Division)/FTC Judicial Magistrate, Ghaziabad/concerned court for deciding a fresh in the light of discussion as made above.
11. The writ petition stands allowed accordingly.
Order Date :- 18.11.2024
Vikram
