Himachal Pradesh High Court
Gursev Singh vs Swadesh Kumar Naik on 1 May, 2024
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MMO No. 17 of 2020
Date of Decision: 01.05.2024
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Gursev Singh ...Petitioner...
Versus
Swadesh Kumar Naik ..Respondent...
Coram
Hon'ble Mr. Justice Bipin Chander Negi, Judge.
Whether approved for reporting?1
For the petitioner: Mr. Sumit Raj Sharma, Advocate.
For the respondent: Mr. G.R.Palsra, Advocate.
4._________________________________________________________
Bipin Chander Negi, Judge (oral)
The petitioner has filed this petition under Section 482 for
quashing of summoning order dated 07.05.2016, proclamation order
dated 30.01.2019 and order dated 09.04.2019, whereby the petitioner
has been declared a proclaimed offender in case No. 1-III/2016, titled
Swadesh Kumar Naik vs. Gursev Singh, passed by learned
Judicial Magistrate, Ist Class, Joginder Nagar, District Mandi, H.P.
2. The cheque in question has been placed on record as Annexure
P-7. A perusal of the same clearly reflects that the same pertains to
the account of a Private Limited Company i.e. Ram Hari Autos Private
Limited .
3. The complaint in which the process has been issued against
the present petitioner vide order dated 07.05.2016 is appended
alongwith the present petition as Annexure P-8. From a perusal of the
cause title, it is clearly evident that conspicuous by absence in the
Whether reporters of Local Papers may be allowed to see the judgment?
complaint is the company i.e. Ram Hari Autos Private Limited.
Admittedly, the same has not been arrayed as a respondent in the
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complaint.
4. I have heard learned counsel for the parties and perused the
record.
5. From perusal of the complaint, it is evident that the allegations
had been made against one Gursev Singh, Proprietor Ram Hara
Infra Tech Pvt. Ltd. Admittedly, the cheque has been issued from the
account of M/S Ram Hari Autos Private Limited. Therefore, taking
action against one Gursev Singh, Proprietor Ram Hara Infra Tech. Pvt.
Ltd. by filing complaint Annexure P-8 is completely misconceived.
6. The question whether the Company could have been made
liable for prosecution without being impleaded as an accused and
whether the Directors could have been prosecuted for offences
punishable under the aforesaid provisions without the Company being
arrayed as an accused is no longer res integra.
7. In view of the authoritative pronouncement of the judgment of
Apex Court in case reported as 2012 (5) SCC 661, titled Anita Hada
vs. Godfather Travels and Tours Private Ltd. The relevant extract
of the same are reproduced for a ready reference:-
"59. 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 which is a
three-Judge Bench decision. Thus, the view expressed in
Sheoratan Agarwal does not correctly lay down the law and,
accordingly, is hereby overruled. The decision in Anil Hada is
overruled with the qualifier as stated in para 51. The decision in
Modi Distilleries has to be treated to be restricted to its own
facts as has been explained by us hereinabove."
8. Besides the aforesaid, learned counsel for the petitioner has
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placed reliance on judgment dated 9 th May, 2022, passed in Cr.
Appeal No. 767 of 2022, titled Dilip Hariramant versus Bank of
Baroda, where in the aforesaid view has been reiterated. Herein the
plea to array the company has been rejected. The relevant extract
whereof is being reproduced herein below:
"...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. Since in the case at hand, the company has not been arrayed
as a respondent nor has a notice under Section 138 of the Negotiable
Instruments Act been served on the company, therefore, the petition
succeeds. The same is allowed. The order of summoning dated
07.05.2016 is quashed and further proceedings before the learned
Trial Court are also quashed.
Pending miscellaneous application(s), if any, shall also stand
disposed of.
(Bipin Chander Negi)
Judge
May 01, 2024
(Nisha)
