Rafiqul Hasan Akramali Sheikh vs The State Of Jharkhand
2022 Latest Caselaw 3113 Jhar

                                     1

       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   Cr.M.P. No. 2416 of 2021

     Rafiqul Hasan Akramali Sheikh, aged about 52 years, son of Akramali
     Sheikh, resident of A/801, Bianca, Yari      Road, Opposite Sangeeta
     Apartment, Andheri West, P.O. Andheri West, P.S. Andheri West, Mumbai,
     Versova, Maharastra -400061                      ...... Petitioner
                          Versus

1.The State of Jharkhand
2. Neutral Publishing House Limited, having its Corporate Office at 15-P,
Kokar Industrial Area, P.O. Koker, P.S. Sadar, District-Ranchi-834001,
represented through Ashutosh Choubey, son of Surendra Nath Choubey,
R/O Devi Mandap Road, P.O. Hehal, P.S. Sukhdeonagar, District-Ranchi
                                        ...... Opposite Parties
                         ---------

CORAM:      HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                     ---------
For the Petitioner  : Mr. Vikas Pandey Advocate
For the State        : Mr. Prabhu Dayal Agrawal, Spl. P.P.
For the O.P. No. 2   : Mr. Deepak Kr. Bharati, Advocate
                     .........

09/Dated: 10/08/2022

Heard Mr. Vikas Pandey, learned counsel for the petitioner, Mr. Prabhu

Dayal Agrawal, learned counsel for the State and Mr. Deepak Kr. Bharati, learned

counsel for the O.P. No. 2.

2. The present petition has been filed for quashing entire criminal

proceeding arising out of Complaint Case No. 2265 of 2013, including order taking

cognizance dated 12.11.2013 passed in connection with Complaint Case No. 2265

of 2013, pending in the Court of learned Judicial Magistrate, Ranchi.

3. O.P. No. 2 has filed complaint alleging therein that complainant is a

publishing company and the accused persons who are directors on behalf of their

company gave orders for publication of materials in Complainant's News Paper

Prabhat Khabar pursuant to which the complainant published the same in its

Newspaper Prabhat Khabar and demanded Rs. 15,00,000/- from the accused

persons against the publication done for them. The accused persons in discharge

of his liability given Cheque no. 893933 dated 24.07.2013, HDFC Bank Ranchi for

sum of Rs. 15,00,000/- which the complainant presented through its banker State

Bank of India. However, the above noted cheque stood dishonored by the bank on

account of the reason " Fund Insufficient" indicated in the State Bank of India note

dated 29.07.2013. It is further alleged that the accused made telephone call to the

complainant's company secretary in the office at Ranchi and verbally informed the

complainant's company secretary in the presence of other employees of the

complainant who heard the conversation over speaker phone of company

secretary that though he had received the notice but he shall not make payment of

the amount claimed from him by the said notice. It is further alleged that in view

of the specific refusal on the part of accused persons to make payment of amount

indicated in the cheque issued by them in discharge of their liability the accused

persons have therefore rendered themselves liable to be punished under the law.

On the basis of these allegations, complaint was filed against two persons

including the petitioner.

4. Mr. Vikas Pandey, learned counsel for the petitioner submits that

company namely, M/s Hertz Jewellery Pvt. Ltd. on its behalf cheque has been

issued. He further submits that the said company has not been made accused in

the complaint petition. He further submits that in view of provision of Negotiable

Instrument Act, particularly sections 138 and 141 of the said Act prosecution

against the petitioner will not be sustainable in absence of company not been

made accused in the complaint petition. To buttress his argument, learned

counsel for the petitioner relied on judgment in the case of " "Aneeta Hada Vs.

Godfather Travels & Tours (P) Ltd." reported in (2012) 5 SCC 661 wherein

para 58 the Hon'ble Supreme Court has held as under:-

"58. Applying the doctrine of strict construction, we are of the considered opinion that commission of offence by the company is an express condition precedent to attract the vicarious liability of others. Thus, the words "as well as the company" appearing in the section make it absolutely unmistakably clear that when the company can be prosecuted, then only the persons mentioned in the other categories could be vicariously liable for the offence subject to the averments in the petition and proof thereof. One cannot be oblivious of the fact that the company is a juristic person and it has its own respectability. If a finding 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.

5. On the same point, learned counsel for the petitioner relied on

judgement in the case of "Himanshu Vs. B. Shivamurthy & Another"

reported in (2019) 3 SCC 797 wherein Para 13 the Hon'ble Supreme Court has

held as under:-

"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."

6. On the point of delay, learned counsel for the petitioner relied on

judgment in the case of "Satish Mehra Vs. State (NCT of Delhi) and

Another" reported in (2012) 13 SCC 614. On the point of 319 Cr.P.C. petition,

learned counsel for the petitioner relied on judgment in the case of "N. Harihara

Krishnan Vs. J. Thomas " reported in (2018) 13 SCC 663 (Paras 26 and

27).

7. On these grounds, learned counsel for the petitioner submits that

entire criminal proceeding is fit to be quashed.

8. Per contra, Mr. Deepak Kr. Bharati, learned counsel for the O.P. No.

2 submits that the petitioner has approached this Court by suppressing materials

facts. He further submits that the cognizance has been taken on 12.11.2013 and

the petitioner was granted bail on 02.08.2018. He further submits that director-

Madan Singh was granted bail on 18.12.2019 and petitioner filed petition under

section 205 Cr.P.C. was rejected on 07.01.2020. He further submits that all the

grounds raised in this petition, has already been taken by the petitioner by way of

filing petition before the concerned court on 10.02.2020 which is still pending. He

further submits that it was not disclosed as to whether the company in question

was the limited company or private company and when this fact came to the

notice of O.P. No. 2, a petition under section 319 Cr.P.C. on 07.12.2021 and

rejoinder has been filed by the petitioner on 07.12.2021 which is still pending. He

further submits that in the meantime, the petitioner moved before this Court and

by issuing notice, this Court stayed the proceeding by order dated 08.12.2021. He

further submits that section 319 Cr.P.C. petition is still pending before the

concerned court as petitioner is not coming forward to argue the matter so that

the petition be decided by the learned court. He further submits that petition

under section 319 Cr.P.C. was subject matter before the Hon'ble Supreme Court in

the case of "Sarabjit Singh Vs. State of NCT of Delhi & Ors. CRL. M.C.

2856/2015 and Crl. M.A. 10176/2015 decided on 08.10.2018 wherein the

Delhi High Court in paras 7 and 9 has held as under :

"7. The scrutiny of the case by the revisional court for purposes of examining as to whether the Metropolitan Magistrate could have exercised the jurisdiction under Section 319 Cr. PC was apparently mis-directed. It examined the case from the perspective of its maintainability against the third respondent which was not a correct approach. It ignored the settled principle that notice to director of the company was sufficient notice to the company. [see Bilakchand Gyanchand Co. vs. A. Chinnaswami, (1999) 5 SCC 693]. In the present case, as already noticed, this is how both the third respondent and the second respondent understood and construed the demand notice to which reply was sent on 19.11.2007 by the second respondent.

9. Since the evidence which has come on record does show the complicity of the second respondent in the crime, the cheques in question having been issued against its account, it having received the notice of demand and not having made any payment in response thereto satisfying the claim of the complainant arising out of the said cheques, the exercise of jurisdiction by the Metropolitan Magistrate under Section 319 Cr. PC could and should not have been interfered with by the revisional court."

9. He further submits that where complicity of the accused appears, the

court is competent to decide petition under section 319 Cr.P.C. He further submits

that identical matter was before the Hon'ble Delhi High Court in the case of M.

Tech Developers Pvt. Ltd. V. State of N.C.T. of Delhi & Others in which it

was decided that Section 319 Cr.P.C. can apply and that was challenged in Special

Leave Petition (Crl.) No. 15 of 2019 which was dismissed by order dated

30.07.2019 by the Hon'ble Supreme Court. He relied on Full Bench judgment of

the Hon'ble Supreme Court in the case of "Pradeep S. Wodeyar Vs. The State

of Karnataka" (Criminal Appeal No. 1288 of 2021) (Paras 29, 37, 41, 42,

44). He further submits that ground as has been taken by the petitioner, is subject

of trial and at the belated stage, this court may not interfere with cognizance

order. He relied on judgment in the case of "Sunil Todi & Ors. Vs. State of

Gujarat & Anr." (Criminal Appeal No. 1446 of 2021) (Para 17 and 44). He

further submits that the submissions of the learned counsel for the petitioner be

taken care of in the trial. To buttress his argument, learned counsel for the O.P.

No. 2 relied on judgment in the case of "Rathish Babu Vs. The State (Govt. of

NCT of Delhi) & Anr. (Criminal Appeal Nos. 694-695 of 2022 (Arising out

of SLP (Crl) Nos. 5781 of 2020) (Para 18 and 19). On these grounds, he

submits that this petition is fit to be dismissed.

10. In view of the above submission of the learned counsel for the

parties, the Court has gone through the materials on record. Admittedly,

cognizance was taken on 12.11.2013. The petitioner was granted bail on

02.08.2018. The petitioner further filed petition under section 205 Cr.P.C. which

was rejected on 07.01.2020. The O.P. No. 2 filed petition under section 319 Cr.P.C.

for adding the company as an accused which is still pending in view of the fact

that interim stay was granted by this Court. In the petition under section 319

Cr.P.C. filed on behalf of O.P. No.2 it has been stated that the cheque in question

has been issued by Rafiqul Hasan, whether the cheque has been issued by

Rafiqul Hasan in capacity of the company or individually and if the fact is not

disclosed to the O.P. No. 2 that is required to be dealt with by the trial court

while deciding the petition and in the rejoinder petition to the petition under

section 319 Cr.P.C. O.P. No. 2 himself has admitted that who issued the

cheque in question is not clear, however, cheque is there.

11. The judgements relied by Mr. Pandey in the case of "Aneeta

Hada (supra) and Himanshu (supra) this issue was not there that who

issued the cheque that is why in that fact the Hon'ble Supreme Court has held that

if the cheque is issued on behalf of the company and company is not an accused

that proceeding is bad in law. That fact was not in the case in hand. Both these

judgments are not helping the petitioner. In the recent judgment of the Hon'ble

Supreme Court on the point of section 319 Cr.P.C. the Hon'ble Supreme Court has

held that the learned court is competent to decide the said issue. Entire facts of

the case suggests that there is element of criminality against the petitioner which

cannot be ruled out at this stage which is the subject matter of determination in

the trial.

12. In the case of "Hardeep Singh Vs. State of Punjab & Ors.,

reported in (2014) 3 SCC 92, the Apex Court has laid down the law that the

accused can be added under Section 319 of the Cr.P.C., at any stage and "the

word 'evidence' in Section 319 Cr.P.C. has to be broadly understood and not

literally i.e. as evidence brought during a trial."

13. In view of the judgments of the Hon'ble Supreme Court in the

case of "Hardeep Singh"(supra) and in the case of "Haryana State

Cooperative Supply and Marketing Federation Ltd. Vs. Jayam Textiles

and Anr." reported in (2014) 4 SCC 704, the company can be added as an

accused at any stage.

14. In view of the discussions made here-in-above, there is no merit in

the petition and accordingly, this petition is dismissed. Pending I.A., if any stands

disposed of. Interim order dated 08.12.2021 is vacated.

(Sanjay Kumar Dwivedi, J.) Satyarthi/