Uttarakhand High Court
C482/2085/2019 on 9 November, 2022
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C482 No. 2085 of 2019
Hon'ble Sharad Kumar Sharma, J.
Mr. Sandeep Kothari, Advocate, for the
applicant.
Mr. Tumul Nainwal, Brief Holder, for the
State of Uttarakhand.
Mr. P.C. Petshali, Advocate, for respondent
No. 2.
Brief facts of the case are, that a complaint
was registered by respondent No.2 on 17th June,
2019, as a consequence of the dishonour of the
cheque, being cheque No. 148126 dated 1st May,
2019, for the sum of Rs.5 lacs, which stood
dishonoured on 4th May, 2019. The notices were
issued on 15th May, 2019, and after compliance of
the provisions contained under Sections 200 and
202 of the Cr.P.C., the cognizance order has been
issued against the present applicant, which is under
challenge, in the present C482 Application.
In the present C482 Application, the legal
ground, which has been agitated by the learned
counsel for the applicant is, that the cheque, which
is reported to be dishonoured on 4th May, 2019,
was issued by the company, namely, M/s Naini
Bottling Company, Bazpur Road Kashipur, District
Udham Singh Nagar.
The argument, which has been extended by
the learned counsel for the applicant and as pleaded
in the C482 Application also, that the initiation of
the complaint proceedings under Section 138 of the
N.I. Act, which is filed on 17th June, 2019, would
be bad in the eyes of law, because of the fact, that
the company was not impleaded as a party
respondent, in the light of the provisions contained
under Section 141 of the N.I. Act, which according
to his argument is mandatory.
The learned counsel for the respondents
admits the fact, that the cheque, which stood
dishonoured on 4th May, 2019, was issued by the
company and he further submits and rather admits
that the company was not made as a party in the
complaint submitted on 17th June, 2019. But in the
counter affidavit, he attempts to carve out an
exception that the cheque, which was issued on 1st
May, 2019, was as a consequence of the personal
loan and hence, the company would not have any
significant role as such to play in the proceedings
under Section 138 of the N.I. Act.
The provisions contained under Section 141
of the N.I. Act, in its specific terms, does not carve
out any exception, as to what is the nature of
liability, which is to be satisfied on the issuance of
the cheque, which is ultimately dishonoured. It
only provides for, that where the proceedings under
Section 138 of the N.I. Act, is drawn against the
company, which is the principle drawer of the
cheque, it would amount to that the company would
be the responsible entity to pay the amount to the
respondent, hence, would be a necessary party as
per Section 141 of the N.I. Act.
But, in view of the provisions contained
under Sub-section (1) of Section 141 of the N.I.
Act, where it uses the language, that where a person
commits an offence under Section 138 of the N.I.
Act, any officer In-Charge of the company, who
was responsible to the company for the conduct of
the business, which is thereafter followed by a use
of punctuation "as well as the company", it shall
be also impleaded as a party to the proceedings
under Section 138 of the N.I. Act.
On this limited count itself, that since the
cheque was issued by the company and the
company itself was not made as a party to the
complaint filed under Section 138 of the N.I. Act,
on 17th June, 2019, it would vitiate the
proceedings.
In that eventuality, the C482 Application
deserves to be allowed, and as a consequence
thereto, the summoning order dated 8th August,
2019, deserves to be quashed, along with the entire
proceedings of Complaint Case No. 2705 of 2019,
Pawan Kapoor Vs. Rajesh Pant.
This Court is of the view, that having
quashed the summoning order, owing to the
technical legal discrepancy of non compliance of
the provisions contained under Section 141 of the
N.I. Act, the issue would be as to whether, a liberty
would be granted to file a fresh complaint after
complying with provisions contained under Section
(1) of Section 141 of the Act, which is being
attempted to be distinguished by the learned
counsel for the applicant, while making reference to
a judgment rendered by the Hon'ble Apex Court in
Criminal Appeal No. 1465 of 2009, Himanshu
Vs. B. Shivamurthy and another, and particularly,
he has made reference to the excerpts of the said
judgement, which is extracted hereunder :-
"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 not be arraigned
as an accused."
In fact, if the excerpt, which is being
extracted hereinabove is considered, the Hon'ble
Apex Court has observed, that in the absence of
there being any prior notice of demand to the
company and without complying with the prior
condition provided under the proviso to Section 138
of the N.I. Act, the company could not be arrayed
as an accused later on in the proceedings.
With all due reverence at my command, the
parameters laid down therein were absolutely
distinct in nature, where the aspect was, as to
whether the company could at all be arrayed in the
proceedings under Section 138 of the N.I. Act,
without complying with the preconditions of the
proviso to Section 138 of the N.I. Act, by initially
raising a notice of demand against the company
itself. But the said judgment nowhere creates a bar,
that as a consequence of allowing of the C482
Application due to non compliance of the condition
contained under Sub-section (1) of Section 141 of
the N.I. Act, proceeding afresh after impleading the
company as one of the respondents, could not be
proceeded with, though the proceedings after
arraying the company as a party would obviously
require the compliance of the conditions as
contained under the proviso of Section 138 of the
N.I Act.
Hence, while allowing this C482 Application
and permitting the applicant to initiate fresh 138
proceedings, after impleading the company as a
party respondent, who was the principle drawer of
the cheque, it obviously goes without saying that
the institution of the fresh proceedings would
obviously be after the compliance of the provisions
contained under proviso to Section 138 of the N.I.
Act.
Subject to the aforesaid, the C482
Application is allowed.
(Sharad Kumar Sharma, J.)
Dated 09.11.2022
Shiv
