Parth Metal And Alloys Through ... vs Rameshkumar N. Agraval
2023 Latest Caselaw 2527 Guj

     R/CR.MA/3367/2023                                ORDER DATED: 27/03/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 3367 of 2023

                    In R/CRIMINAL APPEAL NO. 383 of 2023

                                       With
                         R/CRIMINAL APPEAL NO. 383 of 2023
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       PARTH METAL AND ALLOYS THROUGH CHATTARMAL SONI
                            Versus
                   RAMESHKUMAR N. AGRAVAL
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Appearance:
MR. NISARG N JAIN(8807) for the Applicant(s) No. 1
MR MANISH J PATEL(2131) for the Respondent(s) No. 1
MR RITESH B DAVE(2815) for the Respondent(s) No. 1
MR BHARGAV PANDYA ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 2
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 CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE

                                  Date : 27/03/2023

                                   ORAL ORDER

1. Heard learned advocate Mr. Nisarg Jain for the applicant and Mr. Manish Patel, learned advocate for the respondent No.1.

2. Rule. Learned advocate Mr. Manish Patel waives service of Rule on behalf of the respondent No.1 and learned APP Mr. Pandya waives service of Rule on behalf of the respondent No.2 - State.

3. This is an application under Section 378(4) of Code of Criminal Procedure, seeking leave to challenge the judgment and order dated 28.12.2022 passed by the learned Additional Chief Metropolitan Magistrate, N.I. Court No.34, Ahmedabad, in Criminal Case No.3400052 of 2016. By the judgment and order, learned Magistrate has recorded the order of acquittal against the

R/CR.MA/3367/2023 ORDER DATED: 27/03/2023

respondent No.1 - original accused for the offence punishable under Section 138 of the Negotiable Instruments Act.

4. The facts emerging from the complaint are that:

4.1 The applicant is in the business of trading of the iron and metal parts and the opponent No.1 is the Director of Apar Steel and Casting Pvt. Ltd. Co., which is incorporated under the provisions of the Companies Act. It is contended by the complainant that the parties have entered into the purchase of iron and metal parts from the applicant and in the said transaction, an amount of Rs.10,69,676/- was outstanding. To discharge such liability, the opponent No.1 had initially issued two cheques from the account of the opponent No.1 Company i.e. dated 15.04.2015 for an amount of Rs.1,91,730/- and dated 02.05.2015 for an amount of Rs.8,77,966/- (Exhibit 22 and 23). It is further contended by the complainant that since the opponent No.1 Company was unable to make good the payment to the aforesaid cheques, subsequently, the opponent No.1 namely Rameshkumar N. Agraval had issued cheque bearing No.000069 dated 25.03.2016 for such amount to the appellant from his private bank account of HDFC Bank, Halol Branch, Dist. Panchmahals. The said cheque had returned dishonored with an endorsement of "Funds insufficient". The original complainant issued statutory notice raising demand of the outstanding amount to be paid within the stipulated time period. The said notice was addressed to the opponent No.1 which was duly served. The opponent No.1 having failed to make good payment, the original complainant was constrained to approach the learned Magistrate Court by preferring complaint under Section 138 of the Negotiable Instruments Act,

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which came to be registered as Criminal Case No.3400052 of 2016.

4.2 The learned Magistrate after recording the evidence and upon hearing the learned advocates appearing for the respective parties, proceeded to record the impugned order of acquittal mainly on the ground that disputed cheque was issued by the opponent No.1 in his personal capacity and the complainant had failed to establish the transaction beyond reasonable doubt as regards the legal enforceable debt existing against the opponent No.1.

5. Mr. Nisarg Jain, learned advocate for the applicant - original complainant has relied upon the decision of the Hon'ble Apex Court in the case of Mainuddin Abdul Sattar Shaikh Vs. Vijay D. Salvi reported in 2015(9) SCC 622 and has submitted that the complaint has rightly been filed against the opponent No.1 Rameshkumar N. Agraval, as Director of Apar Steel and Casting Pvt. Ltd. Co. He further submitted that the cheque was drawn by the opponent in his individual capacity and not in the capacity of the Director of the said Company. However, the opponent No.1 being In-charge as the Director of the Company, the legally enforceable debt had been established, more particularly, considering the two documents Exhibit 22 and 23 which indisputedly shows the name of of Rameshkumar N. Agraval as the Authorized Signatory on behalf of Apar Steel and Casting Pvt. Ltd. Co. By referring to the aforesaid decision, he submitted that the presence of the Company would not be required since the cheque was issued in his personal capacity as he had undertaken to discharge the liability on behalf of the said Company. He,

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therefore, urged this Court to grant leave to appeal.

6. Learned advocate Mr. Jain has invited attention of this Court to the judgment in the case of K.K. Ahuja Vs. V.K. Vora and Anr. reported in (2009) 10 SCC 48 and has submitted that in case of Director or an Officer of the Company, who signed the cheque on behalf of the Company, there is no need to make a specific averment that he was In-charge of and was responsible to the conduct of the business of the Company.

7. On the other hand, Mr. Manish Patel, learned advocate for the opponent No.1 has vehemently objected to grant of leave to appeal. He has invited attention of this Court to the findings and reasons recorded by the trial Court while recording the order of acquittal. He has further submitted that learned Magistrate has rightly recorded upon appreciation of the evidence that the original complainant had miserably failed to establish the fact of existence legally enforceable debt vis-a-vis the opponent namely Ramesh Agraval. He further submitted that no material has been brought on record to indicate that Rameshkumar N. Agraval was the Director of the said Company. He lastly submitted that no link has been established by the original complainant about the existence of legally enforceable debt against Rameshkumar N. Agraval in his individual capacity. He therefore, prayed to not to entertain the present leave to appeal and to confirm the judgment and order of acquittal.

8. Having heard learned advocates for the respective parties, prima facie, this Court finds that the two cheques, which have come on record at Exhibit 22 and 23 goes to indicate that

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"Rameshkumar N. Agraval" has signed these cheques as Authorized Signatory of the Company namely Apar Steel and Casting Pvt. Ltd. Co. Thus, it has come on record that he is the authorized person in conduct of business of Apar Steel and Casting Pvt. Ltd. Co. Aforesaid cheques are dated 02.05.2015 and 15.04.2015, whereas the disputed cheque, which is placed on record vide Exhibit 8 is signed by "Rameshkumar N. Agraval" in his individual capacity is dated 25.03.2016.

9. In case of Mainuddin Abdul Sattar Shaikh (Supra), the Hon'ble Supreme Court inter alia held that from a bare reading of Section 138 of the NI Act the essential ingredient to attract the liability is that a person who is made liable should be drawer of the cheque and should have drawn the cheque on account maintained by him with the banker, for the payment of any amount of money to any person from out of that account, for discharge in whole or part of any debt or other liability. Thus, in the context of aforesaid provisions as well as the principle laid down, a person who draws a cheque on account maintained by him for paying to the payee is alone liable for the offence under Section 138 of the NI Act. In the facts of the case, prima facie, this Court in present appeal would like to examine the aforesaid aspect in context of the two cheques, which has been brought on record vide Exhibit 22 and 23. Hence, this application requires consideration. Leave to appeal is granted. Rule is made absolute.

Criminal Appeal No.383 of 2023:

ADMIT. Learned advocate Mr. Manish Patel waives service of notice of admission on behalf of the respondent No.1 and

R/CR.MA/3367/2023 ORDER DATED: 27/03/2023

learned APP waives service of notice of admission on behalf of the respondent No.2 State.

Let R & P be called for.

(NISHA M. THAKORE,J) Y.N. VYAS