Jharkhand High Court
Ajay Kumar Agarwal @ Ajay Kumar Agrawal @ ... vs The State Of Jharkhand on 1 May, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 2195 of 2022
Ajay Kumar Agarwal @ Ajay Kumar Agrawal @ Ajay Kr.
Agarwal, aged about 50 years, S/o Laxman Agarwal, R/o
Plot No. A-17, City Centre, Sector 4, P.O. & P.S.- Sector 4,
Dist.- Bokaro, Jharkhand - 827004 ...... Petitioner
Versus
1. The State of Jharkhand
2. Nimisha Pandey, W/o Dharam Nath Pandey, R/o House
No. 130A, Kunwar Singh Colony, P.O. & P.S.- Chas, Dist.-
Bokaro, Jharkhand - 827013 ...... Opposite Parties
For the Petitioner : Mr. Baibhaw Gahlaut, Adv.
For the State : Mr. Satish Prasad, Addl. PP
For the Opp. Party no. 2 : Mr. Mukesh Kumar, Adv.
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:- Heard the parties.
2. This criminal miscellaneous petition has been filed invoking the
jurisdiction of this Court under Section 482 Cr.P.C. with a prayer
for quashing the entire criminal proceeding, including the order
dated 03.10.2018 passed by learned JMFC, Bokaro in connection
with Complaint Case no. 421 of 2018 by which, learned JMFC,
Bokaro has taken cognizance of the offence punishable under
Section 138 of NI Act, 1881 against the petitioner only.
3. The brief facts of the case is that the petitioner took a friendly
loan of Rs. 5,00,000/- and issued a cheque on behalf of the
partnership firm in the name and style of M/s New Saree
Sangam, in the capacity of authorized signatory of the said
partnership firm. The cheque was presented by the complainant-
opp. party no. 2 in the bank and on 19.02.2018, the cheque was
dishonoured due to insufficiency of fund in the said bank account
of the partnership firm in the name and style of M/s New Saree
Sangam. The complainant-opp. party no. 2 issued a notice of
demand dated 16.03.2018, by registered post. Though the same
1 Cr.M.P. No. 2195 of 2022
was received by the petitioner but the petitioner did not pay the
cheque amount within 15 days of the receipt of such notice of
demand and the complainant instead of arraying the partnership
firm in the name and style of M/s New Saree Sangam as an
accused, filed the complaint case only against the petitioner; in his
personal capacity. Consequent upon that, vide order dated
03.10.2018 in Complaint Case No. 421 of 2018, learned JMFC,
Bokaro took cognizance against the petitioner for having
committed the offence punishable under Section 138 of NI Act,
1881.
4. Learned counsel for the petitioner relies upon the judgment of the
Hon'ble Supreme Court of India in the case of the Dilip
Hiraramani vs Bank of Baroda reported in 2022 0 Supreme (SC)
417, para 14 of which, reads as under:
"14. The provisions of Section 141 impose vicarious liability by deeming fiction which
presupposes and requires the commission of the offence by the company or firm.
Therefore, unless the company or firm has committed the offence as a principal
accused, the persons mentioned in sub-section (1) or (2) would not be liable and
convicted as vicariously liable. Section 141 of the NI Act extends vicarious criminal
liability to officers associated with the company or firm when one of the twin
requirements of Section 141 has been satisfied, which person(s) then, by deeming
fiction, is made vicariously liable and punished. However, such vicarious liability
arises only when the company or firm commits the offence as the primary offender.
This view has been subsequently followed in Sharad Kumar Sanghi v. Sangita Rane,
17[(2015) 12 SCC 781 : "11. In the case at hand as the complainant's initial statement
would reflect, the allegations are against the Company, the Company has not been
made a party and, therefore, the allegations are restricted to the Managing Director.
As we have noted earlier, allegations are vague and in fact, principally the allegations
are against the Company. There is no specific allegation against the Managing
Director. When a company has not been arrayed as a party, no proceeding can be
initiated against it even where vicarious liability is fastened under certain statutes. It
has been so held by a three-Judge Bench in Aneeta Hada v. Godfather Travels and
Tours (P) Ltd. in the context of the Negotiable Instruments Act, 1881."] Himanshu v.
B. Shivamurthy and Another, 18[(2019) 3 SCC 797 : "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."] and Hindustan Unilever Limited v. State of Madhya Pradesh19[(2020) 10
SCC 751 : "23. Clause (a) of sub-section (1) of Section 17 of the Act makes the person
nominated to be in charge of and responsible to the company for the conduct of
business and the company shall be guilty of the offences under clause (b) of sub-section
(1) of Section 17 of the Act. Therefore, there is no material distinction between Section
141 of the NI Act and Section 17 of the Act which makes the company as well as the
nominated person to be held guilty of the offences and/or liable to be proceeded and
punished accordingly. Clauses (a) and (b) are not in the alternative but conjoint.
Therefore, in the absence of the company, the nominated person cannot be convicted or
vice versa. Since the Company was not convicted by the trial court, we find that the
finding of the High Court to revisit the judgment will be unfair to the appellant-
nominated person who has been facing trial for more than last 30 years. Therefore, the
order of remand to the trial court to fill up the lacuna is not a fair option exercised by
the High Court as the failure of the trial court to convict the Company renders the
entire conviction of the nominated person as unsustainable."]. The exception carved
2 Cr.M.P. No. 2195 of 2022
out in Aneeta Hada (supra), 20[The exception would be when the company itself has
ceased to exist or cannot be prosecuted due to a statutory bar.] which applies when
there is a legal bar for prosecuting a company or a firm, is not felicitous for the present
case. No such plea or assertion is made by the respondent." (Emphasis supplied)
and submits that in the absence of partnership firm being
arrayed as an accused, the petitioner having signed the cheque as
an authorized signatory of the firm on its behalf in the absence of
notice of demand being served upon the partnership firm in the
name and style of M/s New Saree Sangam, and thus without
compliance of the proviso to Section 138 of NI Act 1881, learned
JMFC, Bokaro, the learned Magistrate has committed gross error
in taking the cognizance of the offence punishable under Section
138 of the NI Act, 1881 against the petitioner only, hence, it is
submitted that the entire criminal proceeding arising out of the
order dated 03.10.2018 passed by learned JMFC, Bokaro in
connection with Complaint Case no. 421 of 2018 be quashed and
set aside.
5. Learned Addl. PP and learned counsel for the opp. party no. 2 on
the other hand, vehemently opposes the prayer for quashing the
entire criminal proceeding arising out of the order dated
03.10.2018 passed by learned JMFC, Bokaro in connection with
Complaint Case no. 421 of 2018 and submits that the facts of the
case of Dilip Hiraramani vs Bank of Baroda (supra) is entirely
different from the facts of this case, in the sense that in this case,
petitioner herself took the friendly loan in her personal capacity
hence, the ratio of Dilip Hiraramani vs Bank of Baroda (supra) is
not applicable to the facts of this case, hence, this criminal
miscellaneous petition being without any merit be dismissed.
6. Having heard the submissions made at the Bar and after going
through the materials in the record, it is pertinent to mention here
that the corollary of the judgment passed by the Hon'ble Supreme
Court of India in the case of Dilip Hiraramani vs Bank of Baroda
(supra), is that in case, a cheque is issued on behalf of the
partnership firm by its authorized signatory, then the notice
demanding payment of money mentioned in the cheque, by
giving notice in writing to the partnership firm is also a sine qua
non and besides that, arraying the partnership firm as an accused,
is also, the requirement of law and the complainant having not
done neither, so this court has no hesitation in holding that the
order taking cognizance dated 03.10.2018, only against the
petitioner in her individual capacity, though the cheque was
admittedly not issued by her in her individual capacity, rather as
an authorized signatory of the partnership firm, is not sustainable
in law. Therefore, the continuation of the same will amount to
abuse of process of law, and this is a fit case where the entire
criminal proceeding arising out of the order dated 03.10.2018
passed by learned JMFC, Bokaro in connection with Complaint
Case no. 421 of 2018 be quashed and set aside.
7. Accordingly, the entire criminal proceeding arising out of the
order dated 03.10.2018 passed by learned JMFC, Bokaro in
connection with Complaint Case no. 421 of 2018 is quashed and
set aside.
8. In the result, this criminal miscellaneous petition is allowed and
in view of the disposal of this criminal miscellaneous petition, the
interim order, if any, passed earlier, stands vacated.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated, the 1st May, 2024
Smita /AFR
