26 June vs State Of Uttarakhand & Another
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Uttarakhand High Court

26 June vs State Of Uttarakhand & Another on 26 June, 2025

Author: Pankaj Purohit

Bench: Pankaj Purohit

                                                       2025:UHC:5426
                                                         Reportable
HIGH COURT OF UTTARAKHAND AT NAINITAL
 Criminal Misc. Application U/s 482 No.1853 of 2022
                          26 June, 2025



Bhagwati Prasad Gairola Alias Bhaskar Gairola

                                                         --Applicant
                               Versus

State Of Uttarakhand & another


                                                    --Respondents

                         With
 Criminal Misc. Application U/s 482 No.1752 of 2022



Bhagwati Prasad Gairola Alias Bhaskar Gairola

                                                         --Applicant
                               Versus

State of Uttarakhand & another


                                                     --Respondents
---------------------------------------------------------------------

Presence:-
Mr. Sagar Kothari, learned counsel for the applicant.
Mr. B.C. Joshi, learned AGA along with Ms. Sweta Badola Dobhal,
learned Brief Holder for the State.
Mr. Niranjan Bhatt, learned counsel for respondent no.2.
----------------------------------------------------------------------
Hon'ble Pankaj Purohit, J.

In both these applications, challenge is to the same cause of action and the controversy is also one and the same. Hence, these two matters are decided by this common judgment together. For the sake of brevity facts

2025:UHC:5426 of C482 No.1752/2022 are taken into consideration.

2. In a nutshell, it is the case of the complainant that he moved a complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short "the Act, 1881") stating therein that the accused took JCB machine on rent from the father of complainant. For the purpose of the aforesaid work, some payment had been made and for the remaining payment, the accused issued cheques to the father of complaint for its payment. Those cheques were dishonoured by the bank and returned to the complainant with the remark 'cheque is destroyed'. The complainant then informed the accused about dishonoured of cheque over phone and the accused again requested the complainant to reproduce the cheque in the branch, which he did, but unfortunately, again the cheque was dishonoured and returned to the complainant. The complainant then sent a registered notice to the address of accused, which was received by him and on completion of necessary formalities under Section 138 of the Act, 1881, the complaint was filed. On the said complaint, trial court by way of impugned orders, has summoned the accused-applicant to face the trial under Section 138 of the Act, 1881. Challenging those orders of summoning, present C482 applications have been filed.

3. I have heard learned counsel for the parties and carefully perusal of the oral and documentary evidence available on record, the crux of the matter is that while passing the order of summoning the accused, there was non-complaince of Section 141 of the Act, 1881.

4. It was also argued that the applicant/accused

2025:UHC:5426 was a partner of the firm namely, M/s Vaishali Infrastructure and cheques were issued by the firm, but the firm was not impleaded as party-respondent in the array of parties.

5. It is trite that a company or firm as defined under Section 141 of the Act, 1881 is necessarily required to be impleaded in the complaint as respondent, if the liability is fastened upon the company in the light of the provisions envisaged under Section 141 of the Act, 1881. Section 141 of the Act, 1881 is quoted below:-

"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.

Explanation.--For the purposes of this section,--

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

and

2025:UHC:5426

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

6. Having regard to the facts of the case, in none of these matters, partnership firm has been made a party-respondent to the complaint proceedings. Thus, on this same ground, the entire proceedings vitiate and the same cannot sustain in the eyes of law.

7. Although, the counter affidavit has been filed in this matter on behalf of the respondent/complainant, but no logical or justifiable explanation has been given to this legal argument. Thus, the defence taken by the respondent in the counter affidavit is untenable.

8. For the aforesaid reasons, both C482 applications are allowed. Summoning order dated 16.08.2021 passed in Complaint Case No.880 of 2021, Sandeep Panwar vs. Bhaskar Gairola, under Section 138 of the Act, 1881, pending before the court of Judicial Magistrate, New Tehri, District Tehri Garhwal which is the subject matter of C482 No.1752/2022 is hereby quashed.

9. Similarly, the summoning order dated 16.08.2021 passed in Complaint Case No.879 of 2021, Ratan Singh Panwar vs. Bhaskar Gairola, under Section 138 of the Act, 1881, pending before the court of Judicial Magistrate, New Tehri, District Tehri Garhwal which is the subject matter of C482 No.1853/2022 is also quashed.

10. However, this Court is conscious of the fact that option to initiate proceedings under Section 138 of Act, 1881 after complying with mandatory provision of Section 141 Act, 1881 is now hopelessly time barred as the period prescribed for issuance of statutory notice

2025:UHC:5426 under Section 138 of Act, 1881 has long been expired. As it is a trite law that an act may constitute offence under more than one statute, therefore, even if it is not possible to hold the accused liable under Section 138 of Act, 1881 it is observed that quashing of present proceedings would not be construed as an impediment for the respondent to prefer fresh proceedings under any other statute and the respondent would be free to avail any other remedy available to him under penal laws. My view is further fortified by law laid down by Apex Court in the case of Bijoy Kumar Moni Vs. Paresh Manna and another in Criminal Appeal No.5556 of 2024 decided on 20.12.2024. The relevant portion of the aforesaid judgment is quoted herein below:-

"77. We leave it open to the complainant to approach the jurisdictional police station and lodge an appropriate FIR against the accused. If the complainant lodges an FIR, the concerned police officer in-charge of the police station shall investigation the same in accordance with law."

11. Pending application, if any, stands disposed of accordingly.

(Pankaj Purohit, J.) 26.06.2025 AK