S.V.V. Rao vs Priyanath Nayak
2023 Latest Caselaw 1519 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK
                                   CRLMC No. 280 of 2018

            S.V.V. Rao                                ....             Petitioner
                                                      Mr. S. Sourav, Advocate
                                         -versus-
            Priyanath Nayak                           ....        Opposite Party
                                                                          None

            CORAM:
            THE CHIEF JUSTICE
                                        ORDER

Order No. 17.02.2023

06. 1. Despite service of notice, none appears for the Opposite Party-

Complainant.

2. The present petition seeking the quashing of ICC Case No.1913 of 2013 under Section 138 of the N.I. Act, 1888.

3. While issuing notice in the present petition on 27th August, 2018 the following order was passed:

"Heard learned counsel for the petitioner. The petitioner has challenged the order dated 27.04.2016 and issuance of process in ICC Case No.1913 of 2013 in which cognizance of the offence was taken under section 138 of the N.I.

Act. It is contended by the learned counsel for the petitioner that the petitioner is stated to have issued a cheque on behalf of the company towards final arrear salary and full and final settlement of the account of the complainant/opposite party and the said cheque got bounced and ultimately proceeding under section 138 of N.I. has been instituted. It is contended that since the company has not been arrayed as an accused, the criminal

proceeding is not maintainable solely against the petitioner, who is the authorized signatory of the cheque in question on behalf of the company. He has placed reliance in the case of Aneeta Hada v. God Father Travels & Tours Private Limited, (2012) 5 SCC 661 and the judgment of the Hon'ble Supreme Court dated 30.08.2017 passed in Criminal Appeal No.1534 of 2017 (N. Harihara Krishnan v. J. Thomas). In the case Aneeta Hada (supra), it has been held as follows:

"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 drag-net on the touchstone of vicarious liability as the same has been stipulated in the provision itself."

Issue notice to the opposite party on the question of admission indicating therein that the matter shall be disposed of finally at the stage of admission. Speed Post requisites shall be filed by 31st August, 2018.

Learned S.D.J.M., Bhadrak shall send the xerox copy of the entire case records of ICC Case No.1913 of 2013 to this Court in a sealed cover so as to reach this Court by 7th September, 2018.

List this matter on 17th September, 2018

Misc. Case No.187 of 2018 Heard.

Issue notice as above.

As an interim measure, there shall be stay of further proceedings of ICC Case No.1913 of 2013 pending in the Court of learned SDJM., Bhadrak till the next date.

Issue urgent certified copy as per Rules."

4. It is now settled position in law that without making the company an accused, it is not permissible for a complainant to proceed only against the Directors of the company. In the present case, on perusal of the complaint shows that the company on whose behalf the cheque was issued has not been made a party. On that short ground, insofar as the present Petitioner is concerned, ICC Case No.1913 of 2013 pending in the Court of S.D.J.M., Bhadrak is hereby quashed.

5. The petition is allowed in the above terms. An urgent certified copy of this order be issued as per rules.

(Dr. S. Muralidhar) Chief Justice

S.K. Jena/Secy.