Mantu Mahato vs The State Of Jharkhand
2023 Latest Caselaw 3513 Jhar

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           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                          Cr. Revision No. 918 of 2018
                                     ....
            Mantu Mahato                                   ...... Petitioner
                                Versus
            1. The State of Jharkhand
            2. Vijay Kumar Mahato
            3. Binod Prasad                                ...... Opp. Parties
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                                     PRESENT
               HON'BLE MR. JUSTICE SANJAY PRASAD
                                   -----
            For the Petitioner       : Mr. Sidhartha Roy, Advocate
            For the State            : Mr. Rajneesh Vardhan, A. P. P.
            For the O. P. Nos. 2 and 3: Mr. M. B. Lal, Advocate
                                    ......
                              JUDGEMENT

....

11/15.09.2023 The present Criminal Revision No. 918 of 2018 has been filed by the petitioner challenging the judgment dated 06.04.2018 passed in Criminal Appeal No. 161 of 2017 and Criminal Appeal No. 166 of 2017 by the learned Sessions Judge, Dhanbad whereby learned Sessions Judge, Dhanbad has allowed the Criminal Appeal No. 161 of 2017 and Criminal Appeal No. 166 of 2017 filed on behalf of the O. P. No. 2 and O. P. No. 3 and has set aside the judgement of conviction and order of sentence dated 08.08.2017 passed by Sri Vimal Johnson Kerketta, Judicial Magistrate, 1st Class, Dhanbad in connection with C. P. Case No. 2103 of 2012 by which O.P. No. 2, Vijay Kumar Mahato and O.P. No. 3, Mantu Mahato have been acquitted for the offence under Section 138 of the N. I. Act, although, vide the judgement of conviction and order of sentence dated 08.08.2017 passed by Sri Vimal Johnson Kerketta, Judicial Magistrate, 1st Class, Dhanbad in connection with C. P. Case No. 2103 of 2012, the opposite party no. 2, Vijay Kumar Mahato and the opposite party no. 3, Mantu Mahato have been convicted for the offences under Section 138 of the N. I. Act

and have been sentenced to undergo S. I. for a period of three (3) months each and to pay a sum of Rs. 70,000/- each as compensation to the complainant.

2. The complainant's case, in brief, is that initially a complaint case bearing C.P. No. 2103 of 2012 has been instituted by the complainant against the Opposite Party Nos. 2 & 3 under section 138 of N.I. Act alleging inter alia that on the inducement of the of Opposite Party No.2 & 3 the complainant-petitioner invested a sum of Rs. one (1) lac with the firm of Opposite Party No. 2 & 3, namely Bright Star on a assurance that the appellant shall get fixed income on its investment every month. It is stated that the said sum of money was invested with the firm of the Opposite Party No.2 & 3 for a period of 2 years. It is alleged that even after completion of two years investment period the monthly income was never paid regularly to the petitioner and finally the accused persons i.e. the O. P. No. 2 and O. P. No. 3 stopped making payment after certain months. It is alleged that for returning the principal amount a chque bearing No. 741389 dated 18.05.2012 amounting to Rs. One (1) lac was handed over to the petitioner bearing joint signature of Opposite Party No.2 & 3. It is further stated that when the cheque was deposited for encashment / clearance, the same got dishonoured on the ground of insufficiency of funds. It is stated that thereafter demand notice was sent but no heed was paid by the Opposite Party No. 2 and 3 and thus the present complaint was filed by the petitioner under section 138 of the N.I. Act.

3. Heard learned counsel for the petitioner and learned APP for the State and learned counsel for the opposite party no. 2.

4. It is submitted by the learned counsel for the petitioner that the judgment dated 06.04.2018 passed in Criminal Appeal No. 161 of 2017 and Criminal Appeal No. 166 of 2017 by the learned

Sessions Judge, Dhanbad is illegal and not sustainable in law. It is submitted that learned Sessions Judge, Dhanbad has merely acquitted the opposite party no. 2 and 3 only on the ground that the company namely "Bright Star" has not been made accused in the complaint, which is imperative as per the provisions of Section 141 of the N. I. Act. It is submitted that the learned Appellate court has committed a gross error in giving a finding that Bright Star is a company and as per section 141 CrPC, the same was an essential party to be implicated in the complaint petition as one of the accused. It is submitted that as a matter of fact Bright Star is not a company but is partnership firm and the opposite party no. 2 and 3 are its partners. The said fact has also come in the solemn affirmation of the petitioner on 09.10.2012, which was recorded before taking of cognizance on the complaint case preferred by the petitioner. It is submitted that Section 141 of the N. I. Act is not applicable in this case as the cheque has been issued by the partnership firm namely "Bright Star" under the signature of both the partners i.e. the O. P. No. 2 and O. P. No. 3 and as such, the present case is not hit by the Provision of Section 141 of the N. I. Act and it cannot be a ground for acquittal of the accused persons i.e. opposite party no. 2, Vijay Kumar Mahato and opposite party no. 3, Mantu Mahato. It is submitted that liability of a partner may be joint or separate and therefore partnership firm is not required to be made as an accused separately in a complaint. It is submitted that judgment reported in the case of Aneeta Hada Vs. M/s Godfather Travels and Tour Pvt. Limited reported in AIR 2012 SC 2795 is not applicable on the facts of this case and the same has wrongly been relied upon by the learned Sessions Judge, Dhanbad. Learned counsel for the petitioner has also placed reliance upon the judgement passed in the case of Navdeep Singh Versus State of Jharkhand and Another passed in Cr. P. M. No. 2088 of 2017

along with other analogous cases vide judgment dated 01.08.2023 by the Co-ordinate Bench of this Court and has submitted that in the above case also, the company was not made an accused and the Co-ordinate Bench of this Court has held that even if company is not made an accused, then also trial can proceed against the petitioners filed in the above cases. It is submitted that in view of the above, the impugned judgment dated 06.04.2018 passed in Criminal Appeal No. 161 of 2017 and Criminal Appeal No. 166 of 2017 by the learned Sessions Judge, Dhanbad may be set aside in the interest of justice and this Criminal Revision Application may be allowed.

5. On the other hand, learned counsel for the State has opposed the prayer and has submitted that the impugned judgments passed by the learned Sessions Judge, Dhanbad are fit and proper and no interference is required by this Court.

6. Learned counsel for the opposite party nos. 2 and 3 has opposed the prayer and has submitted that the impugned judgment dated 06.04.2018 passed in Criminal Appeal No. 161 of 2017 and Criminal Appeal No. 166 of 2017 by the learned Sessions Judge, Dhanbad whereby learned Sessions Judge, Dhanbad do not required any interference from this Court. It is submitted that the learned Appellate Court below has rightly dismissed the criminal appeals filed on behalf of the opposite party nos. 2 and 3 by placing reliance of the judgment reported in the case of Aneeta Hada Vs. M/s Godfather Travels and Tour Pvt. Limited reported in AIR 2012 SC 2795. It is submitted that it is mandatory under provision of Section 141 of the N. I. Act to implead the company/partnership firm as party in this case, which has not been considered by the learned Court below and the learned Trial Court i.e. Court of Judicial Magistrate, 1st Class, Dhanbad in C. P. Case No. 2103 of 2012 had wrongly convicted the opposite party no. 2,

Vijay Kumar Mahato and opposite party no. 3, Mantu Mahato for the offence under Section 138 of the N. I. Act and has wrongly sentenced them to undergo S. I. for a period of three (3) months each and to pay a sum of Rs. 70,000/- each as compensation to the complainant. It is submitted that the above legal notice was served upon the O.P. No. 2, Vijay Kumar Mahato and O.P. No. 3, Mantu Mahato in their personal capacity and partnership firm has not been received any notice and as such, the complaint petition was not maintainable and in view of the above fact, this Criminal Revision Application may be dismissed.

7. Perused the Lower Court Records and considered the submission of both the sides.

8. It transpires from the complaint that the opposite party nos. 2 and 3 had got invested Rs. 1,00,000/- in the name of one "Bright Star" firm from the complainant - petitioner on the assurance that the they will return his principal amount within two years and apart from this, they will also pay a fix amount per month. It is stated that for a few months, the accused persons i.e. the opposite party nos. 2 and 3 had given certain amount to the complainant and thereafter they stopped making payment of monthly amount in the garb of giving a huge sum. It is stated that after completing two years, the opposite party nos. 2 and 3 by their joint signature handed over a cheque of Rs. 1,00,000/- on 18.05.2012 drawn by SBI, Dhanbad Branch and when the said cheque was placed for encashment by the complainant, then the said cheque had bounced due to 'insufficient fund'. When the complainant informed the matter before the accused persons, then they assured him to present the cheque again for encashment, but when the complainant presented his cheque again in his AXIS Bank on 20.07.2012, then the said cheque was again returned with the endorsement due to "insufficient fund". Thereafter, on

02.08.2012 the complainant has sent a legal notice to the O. P. No. 2 and O. P. No. 3, but no reply was received. However, both the accused persons i.e. the opposite party nos. 2 and 3 again assured him to return Rs. 2,00,000/- by 7-8 September, but no amount was returned and as such the complainant case was filed on 11.09.2012.

9. It transpires that during trial, the complainant got examined himself as C.W.-1.

10. The complainant got marked following documents as Exhibits, which are as follows:-

(i) Ext. 1 to Ext. 1/2 are Signature of Mantu Mahato on the complaint petition,

(ii) Ext. 2 is Cheque bearing no. 741389,

(iii) Ext. 3 is Deposit slip,

(iv) Ext. 4 is Cheque return memo,

(v) Ext. 5 is Carbon copy of legal notice dated 02.08.2012 which bears the signature of complainant and his advocate and

(vi) Ext. 6 and 6/1 are Original postal receipts.

11. Thereafter, the accused persons i.e. O. P. No. 2 and O. P. No. 3 were examined under Section 313 of the Cr. P. C. before the learned Court below on 19.04.2017.

12. Neither any defence witness was examined on behalf of the accused persons i.e. O. P. No. 2 and O. P. No. 3 nor any document was marked as Exhibits on behalf of the opposite party nos. 2 and 3.

13. It transpires that on the basis of complainant and documents produced on behalf of the complainant, vide judgement of conviction and order of sentence dated 08.08.2017 passed by in connection with C. P. Case No. 2103 of 2012, Sri Vimal Johnson Kerketta, Judicial Magistrate, 1st Class, Dhanbad has convicted the opposite party no. 2, Vijay Kumar Mahato and opposite party no.

3, Mantu Mahato for the offence under Section 138 of the N. I. Act and had sentenced them to undergo S. I. for a period of three (3) months each and to pay a sum of Rs. 70,000/- each as compensation to the complainant i.e. the cheque amount along with the cost incurred and mental agony and financial loss caused to the complainant.

14. It further transpires that the opposite party no. 2, Vijay Kumar Mahato had filed Criminal Appeal No. 161 of 2017 and opposite party no. 3, Mantu Mahato had filed Criminal Appeal No. 166 of 2017 before the learned Sessions Judge, Dhanbad and both the above Criminal Appeals were allowed vide composite judgment dated 06.04.2018 by the learned Sessions Judge, Dhanbad on the ground that firm "Bright Star" has not been made party.

15. The learned Appellate Court has relied upon the judgment reported in the case of Aneeta Hada Vs. M/s Godfather Travels and Tour Pvt. Limited reported in AIR 2012 SC 2795 and also observed that the prosecution is not maintainable under Section 141 of the N. I. Act as the company has not been made party as an Accused and had allowed both the appeals.

16. From going through the records, it is evident that transaction between the parties to the extent that the complainant- petitioner had invested Rs. 2,00,000/- in the "Bright Star" firm is admitted on the assurance of the opposite party nos. 2 and 3 presentation of Cheque No. 741389 dated 18.05.2012 for an amount of Rs. 1,00,000/- is also admitted.

17. From perusal of the cheque marked as Ext. -2, it transpires that it was issued on 18.05.2012 by Vijay Kumar Mahato, the Managing Director, "Bright Star" and also by Binod Prasad, Partner, "Bright Star" both as opposite party nos. 2 and 3and they have not disputed their signature on the cheque of Rs. 1,00,000/-

dated 18.05.2012 marked as Ext.-2. The only objection raised on behalf of the opposite party nos. 2 and 3 is that the said "Bright Star" firm has not been made party and as such, the complaint petition was not maintainable the provisions of under Section 141 of the N. I. Act.

18. At this stage, it is relevant to mention Section 141 of the N. I. Act and Explanation of Section 141 of the N. I. Act, which reads as under:-

"141. Offences by companies. -(1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence:

Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter. (2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly."

The explanation to the Section is in the following terms:-

"Explanation - For the purposes of this section, -

(a) "company" means any body corporate and includes a firm or other association of individuals; and

(b) "director", in relation to a firm, means a partner in the firm."

19. It has been held in the judgment reported in the case of Aneeta Hada Vs. M/s Godfather Travels and Tour Pvt. Limited reported in (2012) 5 SCC 661 at para- 53, 58 and 59 as follows:-

"Para-53:- It is to be borne in mind that Section 141 of the Act is concerned with the offences by the company. It makes the other persons vicariously liable for commission of an offence on the part of the company. As has been stated by us earlier, the vicarious liability gets attracted when the condition precedent laid down in Section 141 of the Act stands satisfied. There can be no dispute that as the liability is penal in nature, a strict construction of the provision would be necessitous and, in a way, the warrant. Para-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. Para-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 (supra) 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."

20. It has been held in the judgment reported in the case of G. Ramesh Versus Kanike Harish Kumar Ujwal and Another reported in (2020) 17 SCC 239 at para- 11, 12 and 16 as follows:-

Para-11:- In terms of the explanation to Section 141, the expression "company" has been defined to mean any body corporate and to include a firm or other association of individuals. Sub-section (1) of Section 141 postulates that where an offence is committed under Section 138 by a company, the company as well as every person who, at the time when the offence was committed, was in charge of and was responsible to the company for the conduct of the business shall be deemed to be guilty of the offence.

Para-12:- In determining as to whether the requirements of the above provision have been fulfilled, it is necessary to bear in mind the principle of law that a partnership is a compendious expression to denote the partners who comprise of the firm. By the deeming fiction in Explanation (a) the expression company is defined to include a firm.

Para-16:- In the present case, it is evident from the relevant paragraphs of the complaint which have been extracted above that the complaint contains a sufficient description of (i) the

nature of the partnership; (ii) the business which was being carried on; (iii) the role of each of the accused in the conduct of the business and, specifically, in relation to the transactions which took place with the complainant. At every place in the averments, the accused have been referred to in the plural sense. Besides this, the specific role of each of them in relation to the transactions arising out of the contract in question, which ultimately led to the dishonour of the cheques, has been elucidated."

21. So far as reliance placed by the learned counsel for the petitioner upon the judgement passed in the case of Navdeep Singh Versus State of Jharkhand and Another passed in Cr. P. M. No. 2088 of 2017 along with other analogous cases vide judgment dated 01.08.2023 by the Co-ordinate Bench of this Court is concerned, the same is not applicable on the facts and in the circumstances of the above cases, because the petitioners in the said case had prayed for quashing the FIR and the order taking cognizance in respect of several FIRs instituted for theft of electricity under Sections 379/427 of the Indian Penal Code and Section 135/138 of the Indian Electricity Act,2003 and under Sections 39 and 44 of the Indian Electricity Act, 2003 at different places i.e. Hazaribagh, Saraikella, Ranchi, Giridih, Chatra, Jamshedpur etc. causing huge loss of the JUVNL and hence, the above judgement is not relevant for the petitioner as the facts relates to same other issues.

22. It is imperative on the part of the complainant- petitioner to arraign the partnership firm as also the accused. However, the complainant-petitioner has not arrayed the partnership firm as the accused in this case.

23. Even the Hon'ble Supreme Court in the judgment reported in the case of G. Ramesh Versus Kanike Harish Kumar Ujwal and Another reported in (2020) 17 SCC 239 has held that definition/

word "company" includes as 'a firm' or other association of individuals.

24. In the above case, it is evident from the case of the petitioner that the cheque has been issued by the partnership firm Bright Star. However, the firm 'Bright Star' has not been made as an accused in the complaint filed on behalf of the petitioner. The Hon'ble Supreme Court has held that company or firm is principal offender and the Director of the partnership of the firm can be held vicariously for the offences only if the company or partnership firm is made an accused.

25. In view of the judgments of the Hon'ble Supreme Court as mentioned above, the learned Appellate Court has rightly allowed the Criminal Appeal No. 161 of 2017 and Criminal Appeal No. 166 of 2017 and set aside the judgement of conviction and order of sentence dated 08.08.2017 passed by Sri Vimal Johnson Kerketta, Judicial Magistrate, 1st Class, Dhanbad in connection with C. P. Case No. 2103 of 2012.

26. Accordingly, the impugned judgment dated 06.04.2018 passed in Criminal Appeal No. 161 of 2017 and Criminal Appeal No. 166 of 2017 by the learned Sessions Judge, Dhanbad is upheld by this Court.

Accordingly, this Criminal Revision No. 918 of 2018 is hereby dismissed.

(Sanjay Prasad, J.) Kamlesh/ A.F.R.