Jharkhand High Court
Ripunjay Prasad Singh vs The State Of Jharkhand on 23 October, 2024
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND, RANCHI
W.P. (Cr.) No. 485 of 2024
With
W.P. (Cr.) No. 486 of 2024
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Ripunjay Prasad Singh, son of Late Bhuneshwar Prasad Singh,
Director of M/s Morias Infrastructure Private Limited, having its
Registered Office at Flat No.2-D, Tower - 6, Genexx Valley,
Diamond Harbour Road, Joka, Kolkata PO and PS -
Thakurpukar, District 24 - Pargana (South) - 700104, West
Bengal, resident-cum-Branch Office at 208, Pustak Bhawan
Complex, Court Road, PO GPO, PS - Kotwali, District - Ranchi
.... Petitioner
-- Versus --
1. The State of Jharkhand
2. Md. Jamal, son of Late Shekh Abdul Rahman, aged about 56
years, resident of Purani Ranchi, PO - GPO, PS - Kotwali,
District - Ranchi
.... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner :- Mr. Kaushik Sarkhel, Advocate
For the State :- Mr. Binit Chandra, Advocate
For Respondent No.2 :- Mr. Shashank Shekhar, Advocate
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07/23.10.2024 In both the writ petitions, the common question of fact
and law are involved and in view of that both the writ petitions are
being heard together with consent of the parties.
2. Heard learned counsel appearing for the petitioner, learned
counsel appearing for the respondent State and learned counsel
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appearing for the Respondent No.2.
3. W.P.(Cr.) No.485 of 2024 has been filed for quashing of the
entire criminal proceeding including the order dated 18.09.2019
passed by learned Judicial Magistrate, ranchi in connection with
Complaint Case No.2902 of 2019 whereby the summons have been
issued against the petitioner under Section 138 of the Negotiable
Instruments Act pending in the Court of learned Judicial Magistrate, 1st
Class, Ranchi.
4. W.P. (Cr.) No.486 of 2024 has been filed for quashing the
entire criminal proceeding including the order dated 13.09.2019
passed by learned Judicial Magistrate, Ranchi in connection with
Complaint Case No.2959 of 2019 under Section 138 of Negotiable
Instruments Act wherein the petitioner has been summoned and the
matter is pending in the Court of learned Judicial Magistrate, 1st Class,
Ranchi.
5. The story of both the complaint case is almost similar and
since the amount is different that's why both the complaint case has
been filed.
6. The complaint case was filed alleging therein that the opposite
party No.2 has alleged inter alia stating in the complaint petition that
he owns and possess a piece and parcel of land under Khewat No.10,
which appertains to Plot No.573, measuring an area 2.89 acres and
plot Nos.574 and 593 measuring an area 6 decimal and 37 decimals
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respectively situated at Village Purani Ranchi, PS - Kotwali, District -
Ranchi. It is further alleged that the petitioner had a dialogue of sale
of plot No.573 measuring an area 2.81 acres out of 2.89 acres @ Rs.5
lakhs per decimal with M/s Morias Infrastructure Pvt. Ltd. and after
examining the document, he believed that opposite party No.2 is the
owner of the property and accordingly agreement to sale was drafted
in English language, whereas the allegation of the opposite party No.2
that he would have been more comfortable in Hindi language. It is
further alleged that no earnest money was paid by the said Morias
Infrastructure Pvt. Ltd. on the day of execution of deed of agreement
to sale dated 04.06.2016. It is also alleged that Director of Morias
Infrastructure Pvt. Ltd. valued the said property to the tune of Rs.
Four crores thirty lacs in the agreement which was not the price
negotiated. It is also alleged that protest was made by the opposite
party No.2 with Morias Infrastructure Pvt. Ltd. and price on a total
lump sum price for Rs.11,64,50,000/- was fixed, which was to be paid
by the Morias Infrastructure Pvt. Ltd. to opposite party No.2 at the
time of execution of deed of sale. The said Morias Infrastructure Pvt.
Ltd. got the deed of sale executed in favour of Kanodia Builders LLP,
for a valuable consideration amount of Rs.11,64,50,000/- towards TDS
which was deposited by Kanodia Builders LLP in the account of Central
Government vide BRS Code No.6360218, challan No.33142 dated
03.06.2016. On verification, the opposite party No.2 found that no
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amount has been credited in his account and on being questioned, the
respondent No.2 got 5 demand drafts from Morias Infrastructure Pvt.
Ltd. of Rs. Three Crore Thirty Lacs, which were duly credited on
08.06.2016 and 14.06.2016 and balance amount was to be paid by
Morias Infrastructure Pvt. Ltd. It is further alleged that in order to pay
off the legal debt, a cheque bearing Nos.000279 and 000280 was
issued by the Morias Infrastructure Pvt. Ltd. but it could not be
honored due to insufficient fund and accordingly the opposite party
No.2 issued notice to the Morias Infrastructure Pvt. Ltd. and the
petitioner but payment was not made to him, hence he filed a
complaint under Section 138 of the NI Act.
7. Learned counsel appearing for the petitioners submits that in
the first case, the amount of cheque is Rs.50 lacs and in the second
case the amount of cheque is also Rs.50 lacs which was dishonored,
pursuant to that the complaint case has been filed and the learned
Court has been pleased to summon the petitioners under Section 138
of the Negotiable Instruments Act. He further submits that petitioners
have paid a sum of Rs.7 crores and only Rs.3 crores remains to be
paid. He submits that this figure has come pursuant to a compromise
reached between the parties in W.P. (Cr.) No.171 of 2022 in which the
challenge was made to the entire criminal proceeding arising out of
the complaint case filed by the respondent No.2. He submits that the
said writ petition was sent to the mediation center and pursuant to
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that the mediation was taken place and thereafter that figure has
come and the said writ petition has been disposed of by the order
dated 20th February, 2024 and in view of the compromise that criminal
proceeding was quashed. He submits that respondent No.2 is having
the right title possession of the land in question, however the anti-
social elements have not allowed the petitioner to erect the boundary
wall and those persons have lodged the revenue case against the
respondent No.2. He submits that for that action the petitioner has
also filed the FIR which is pending. On the law point, so far these two
writ petitions are concerned, he submits that the cheque was issued
on behalf of the company namely Morias Infrastructure Pvt. Ltd. in the
first case and in the second case on behalf of Kanodia Builders LLP
have not been made party. He submits that only the Directors have
been made party and in view of that complaint petition itself is not
maintainable and to buttress his argument, he relied in the judgment
of Hon'ble Supreme Court in the case of Aneeta Hada versus
Godfather Travels and Tours Pvt. Ltd. reported in (2012) 5
SCC 661. He also relied in the order passed by this Court in Cr.M.P.
No.1748 of 2019 dated 27.03.2023.
8. Relying on the above judgment, he submits that the ratio of
that judgment is applicable in both the cases and in view of that the
complaint case and the orders summoning may kindly be quashed.
9. Per contra, learned counsel appearing for the respondent No.2
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submits that the intention of the petitioner from the very beginning
was not good. He submits that it is disclosed in the sale deed that the
RTGS reference is made and the payment of Rs.11,52,85,500/- is
shown through RTGS, however, that amount has not been credited in
the account of the respondent No.2 and the RTGS number is forged
one. He submits that even the TDS amount has been deducted out of
the consideration amount. He submits for that fraud the petitioner has
filed the complaint case being Complaint Case No.48 of 2021 which
was challenged by the petitioners in W.P. (Cr.) No.171 of 2023. He
submits that the writ petition was decided along with W.P. (Cr.) No.202
of 2023, however, those writ petitions were arising out of the same
complaint case and in that writ petition mediation was made and
pursuant to that it was decided to settle the dispute and the
respondent No.2 has agreed the settle after receiving a sum of Rs.4
crores and out of that Rs.4 crores after that 1 crore was paid,
however, Rs.3 crore was not paid and those writ petitions were
allowed on the basis of the compromise and that criminal proceeding
has been quashed. He submits that in this background the cheque was
presented which was issued by the Director of the company and the
learned Court has rightly called upon the Director to face the trial. He
submits in view of that this Court may not interfere with the entire
criminal proceeding as well as the summoning order.
10. Learned counsel appearing for the respondent State submits
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that the dispute is there with regard to the cheque and the summon
has been issued and it is for them to make out their case in the trial.
11. The only question is required to be considered by this Court
as to whether in the absence of the company as a separate accused,
the entire criminal proceeding can be quashed or not.
12. In paragraph No.9 of the writ petition, it is admitted by the
petitioner that the petitioner has issued a cheque in the capacity of the
Director namely M/s Morias Infrastructure Pvt. Ltd. and one more
person namely Rekha Khetawat who has been made as an accused in
the present complaint is the Chief Executive Officer of M/s Kanodia
Builders LLP. The admission in paragraph No. 9 of the writ petition, it
is crystal clear that the petitioners have issued the cheque in the
capacity of the Director of the company.
13. While the essential element for implicating a person under
Section 141(1) is his or her being in charge of and responsible to the
company in the conduct of its business at the time of commission of
the offence, the emphasis in Section 141(2) is upon the holding of an
office and consent, connivance or negligence of such officer
irrespective of his or her being or not being actually in charge of and
responsible to the company in the conduct of its business. Thus, the
important and distinguishing feature in Section 141(1) is the control of
a responsible person over the affairs of the company rather than his
holding of an office or his person over the affairs of the company
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rather than his holding of an office or his designation, while the
liability under Section 141(2) arises out of holding an office and
consent, connivance or neglect. Section 141(2) the prosecution would
be required to allege and prove the consent, connivance or neglect
and holding of the office by the accused. However, there is nothing to
suggest that the same person cannot be made to face the prosecution
either under Section 141(1) or Section 141(2) or both.
14. From perusal of the complaint petition, the Court finds that
although the company has not been made accused separately, but
complainant has made the Director as accused who has signed the
cheque as an accused and mentioned the company name i.e. M/s
Morias Infrastructure Private Limited in the complaint petition in the
name of the accused persons column, just below the name of the
Director which clearly reveals that company name is there and
involvement of the company is also there. It is well settled law that the
person who was at the helm of the affairs of the company and in
charge of and responsible for the conduct of the business at the time
of the commission of the offence will be liable for the criminal
prosecution.
15. Further it is admitted position that the Directors have been
made party. Notice issued in the name of the Director who signed the
cheque and admittedly the notice was issued and the same was
received by the Director and it is admitted in the writ petition that
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cheques were issued by the petitioner and this aspect of the matter
has been answered by Hon'ble The Supreme Court in the case of
Rajneesh Aggarwal versus Amit J. Bhalla reported in (2001) 1
Supreme 24 wherein paragraph No.6 it has been held as under:-
6. Having regard to the contentions raised by the
counsel for the parties, two questions really arise for our
consideration:
(1) Was the High Court justified in coming to the conclusion
that the drawer has not been duly served with notice for payment?
(2) Whether deposit of the entire amount covered by three
cheques, while the matter is pending in this Court, would make
any difference?
So far as the first question is concerned, it is no doubt
true that all the three requirements under clauses (a), (b) and (c)
must be complied with before the offence under Section 138 of
the Negotiable Instruments Act, can be said to have been
committed and Section 141 indicates as to who would be the
persons, liable in the event the offence is committed by a
company. The High Court itself on facts, has recorded the findings
that conditions (a) and (b) under Section 138 having been duly
complied with and, therefore, the only question is whether the
conclusion of the High Court that condition (c) has not been
complied with, can be said to be in accordance with law. Mere
dishonour of a cheque would not raise to a cause of action unless
the payee makes a demand in writing to the drawer of the cheque
for the payment and the drawer fails to make the payment of the
said amount of money to the payee. The cheques had been issued
by M/s Bhalla Techtran Industries Limited, through its Director Shri
Amit Bhalla. The appellant had issued notice to said Shri Amti J.
Bhalla, Director of M/s Bhalla Techtran Industries Limited.
Notwithstanding the service of the notice, the amount in question
was not paid. The object of issuing notice indicating the factum of
dishonour of the cheques is to give an opportunity to the drawer
to make payment within 15 days, so that it will not be necessary
for the payee to proceed against in any criminal action, even
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though the bank dishonoured the cheques. It is Amit Bhalla, who
had signed the cheques as the Director of M/s Bhalla Techtran
Industries Ltd. When the notice was issued to said Shri Amit
Bhalla, Director of M/s Bhalla Techtran Industries Ltd., it was
incumbent upon Shri Bhalla to see that the payments are made
within the stipulated period of 15 days. It is not disputed that Shri
Bhalla has not signed the cheques, nor is it disputed that Shri
Bhalla was not the Director of the company. Bearing in mind the
object of issuance of such notice, it must be held that the notices
cannot be construed in a narrow technical way without examining
the substance of the matter. We really fail to understand as to why
the judgment of this court in Bilakchand Gyanchand Co. (supra),
will have no application. In that case also criminal proceedings had
been initiated against A. Chinnaswami, who was the Managing
Director of the company and the cheques in question had been
signed by him. In the aforesaid premises, we have no hesitation to
come to the conclusion that the High Court committed error in
recording a finding that there was no notice to the drawer of the
cheque, as required under Section 138 of the Negotiable
Instruments Act. In our opinion, after the cheques were
dishonoured by the bank the payee had served due notice and yet
there was failure on the part of the accused to pay the money,
who had signed the cheques, as the Director of the company. The
impugned order of the High Court, therefore, is liable to be
quashed.
16. Since the cheque in question has been signed by the Directors
of the company and company name has also been mentioned in the
complaint petition just below the name of the Director and Directors
have been made named accused and that fact is admitted in the writ
petition itself, and for not making company as a separate accused in
the complaint petition is not fatal for the prosecution.
17. The judgment relied by the learned counsel appearing for the
petitioner in the case of Aneeta Hada (supra) is not in dispute and it
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was held by Hon'ble Apex Court that company has to be made
accused, the company can have a criminal liability fastened on it. The
company is a juristic person, the concept of corporate criminal liability
is attracted to a corporation and company and it is so luminescent
from the language employed under Section 141 of the Act. The reason
for creating vicarious liability is plainly that a juristic entity i.e.
company would run by living person who was charge of its affairs but
the case in hand, Directors are running the company and taking part
actively in the affairs of the company and sign the cheque as a
authority of the Director further received the notice under Section 138
of the Negotiable Instruments Act further they have not denied that
they are not the Directors of the company and cheque has not been
issued by them, hence present case is not helping the petitioner.
18. Thus, in view of the above the grounds taken by Mr. Sarkhel
can be a subject matter of trial.
19. In view of the above, no case of interference is made out,
these writ petitions are dismissed.
(Sanjay Kumar Dwivedi, J.)
Sangam/
A.F.R.
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