High Court of Chhattisgarh
Case Details
1 Digitally signed by INDRAJEET SAHU Date: 2025.01.28 10:30:01 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 882 of 2023 AFR 1 - J.S.T. Homes Pvt. Ltd. Through Managing Director Tarak Ranjan Manjhi, R/o 3rd Floor, Sai Chamber, Gurudwara Road, Shayam Nagar, Telibandha, District Raipur, Chhattisgarh. 2 - Tarak Ranjan Manjhi S/o late Sushil Ranjan Majhi Aged About 43 Years R/o Flat No. 105/C Cross Road Apartment, Amlidih, New Rajendra Nagar, Raipur, Chhattisgarh. 3 - Smt. Shikha Manjhi W/o Shri Tarak Ranjan Manjhi Aged About 37 Years R/o H.No. 8, Kohinur Villa, Near Sent Joseph School, Amlideeh, Raipur, Tahsil And District Raipur, Chhattisgarh. versus 1 - Govind Prasad Haldkar S/o Birnlal Haldkar Aged About 63 Years R/o Q. No. 11b, Street No. 31, Sector 4, Bhilai, P.S. Bhilai Bhatti, District Durg, Chhattisgarh. --- Respondent(s) --- Petitioner(s) CRMP No. 906 of 2023 1 - J.S.T. Homes Pvt. Ltd. Through Managing Director Tarak Ranjan Manjhi, R/o 3rd Floor, Sai Chamber, Gurudwara Road, Shayam Nagar, Telibandha, Dist. Raipur (C.G.) 2 - Tarak Ranjan Manjhi S/o Sushil Ranjan Manjhi Aged About 43 Years R/o Kohinur Villa, Amlideeh, Near Sent Joseph School, Raipur Chhattisgarh. 3 - Smt. Shikha Manjhi W/o Shri Tarak Ranjan Manjhi Aged About 37 Years R/o H. No. 8, Kohinur Villa, Near Sent Joseph School, Amlideeh, Raipur, Tahsil And Distt. Raipur (C.G.) Versus 1 - N. K. Khande S/o Lt. H.R. Khande Aged About 66 Years R/o B-240, Street No. 7, Smriti Nagar, Bhiali, Durg, Dist. Durg Chhattisgarh ---Petitioner(s) -- Respondent(s) CRMP No. 887 of 2023 1 - J.S.T. Homes Pvt. Ltd. Through Managing Director Tarak Ram Manjhi, R/o 3rd Floor, Sai Chamber, Gurudwara Road, Shayam Nagar, Telibandha, Dist. Raipur (C.G.) 2 - Tarak Ranjan Manjhi S/o Sushil Ranjan Manjhi Aged About 43 Years R/o H. No. 8, Kohinur Villa, Sent Josef School, Amlideeh, Dist. Raipur (C.G.) 2 3 - Shikha Manjhi W/o Shri Tarak Ranjan Manjhi Aged About 37 Years R/o H. No. 8, Kohinur Villa, Sent Josef School, Amlideeh, Dist. Raipur (C.G.) Versus ---Petitioner(s) 1 - Smt. Pushpa Sahu S/o Shri Bhagwati Prasad Sahu Aged About 62 Years R/o Near Sahu Sadan, Kelabari, Dist. Durg (C.G.) -- Respondent(s) For Petitioners For Respondent : :
Legal Reasoning
Shri N. Naha Roy, Advocate. Shri Mayank Mulchandani, Advocate (in CRMP No.887 of 2023) Hon’ble Shri Justice Ravindra Kumar Agrawal, J Order reserved on 20.10.2024 Order Delivered on 27.01.2025 1. The issue involved in all these petitions are one and the same and therefore for the sake of brevity they are being heard and decided together by this common order. 2. In all these petitions, the petitioners have challenged the order dated 16.03.2023 passed by the trial court in Criminal Case No.RCC/4580/2014 (CRMP No.882 of 2023), Criminal Case No.RCC/9896/2015 (CRMP No.887 of 2023) and Criminal Case No. RCC/9901/2015 (CRMP No.906 of 2023) whereby the application filed by the complainant under Section 319 CrPC in all these three cases were allowed and the other Director of the petitioner-company was directed to be made as an additional accused in the case. CRMP No.882 of 2023 3. Brief facts of the case are that, the petitioner No.1 is a company registered under the Companies Act, 1956 carrying out real estate business. The petitioner No.2&3 are the Directors of company. The complainant had deposited Rs.1,00,000/- with the petitioner-company on 26.02.2011 and in lieu thereof a promissory note was issued on 3 13.02.2013. At the time of execution of promissory note, the interest on the amount deposited by the complainant had also been paid to him and in lieu of actual amount i.e. Rs.1,00,000/-, a cheque was issued by the petitioner-company on 15.12.2013 bearing cheque No.398907 which was of ICICI Bank Limited. When the said cheque was deposited by the complainant in his bank account for its clearance, the said cheque was dishonored by the payee bank on 11.03.2014. A demand notice was sent on 09.04.2014 to the petitioner No.2 and ultimately a complaint case was filed under Section 138 of the Negotiable Instruments Act, 1881 (in short, NI Act) against the petitioner No.2 Tarak Ranjan Manjhi. The complaint case was filed on 24.05.2014 before the trial court and the same was registered on 07.07.2014 and process was issued against the petitioner No.2. The details of offence was explained to the petitioner No.2 on 29.09.2021 and the trial court proceeded for trial of the case. CRMP No.906 of 2023 4. Brief facts of the case are that, the petitioner No.1 is a company registered under the Companies Act, 1956 carrying out real estate business. The petitioner No.2&3 are the Directors of the company. The complainant had deposited certain amount with the petitioner-company and in lieu of repayment of said amount, cheque No.398813 dated 20.12.2014 amounting to Rs.3,00,000/- which was of ICICI Bank Limited Civil Lines Raipur Branch was issued to the complainant. When the said cheque was deposited by the complainant in his bank account for its clearance, the said cheque was dishonored by the payee bank on 28.01.2015. A demand notice was sent on 13.02.2015 to the petitioner No.1/company and ultimately a complaint case was 4 filed under Section 138 of the NI Act against the petitioner No.1- company. The complaint case was filed on 12.03.2015 before the trial court and the same was registered on 20.11.2015 and process was issued against the petitioner No.1. The details of offence was explained to the petitioner No.1 on 07.09.2021 and the trial court proceeded for trial of the case. CRMP No.887 of 2023 5. Brief facts of the case are that, the petitioner No.1 is a company registered under the Companies Act, 1956 carrying out real estate business. The petitioner No.2&3 are the Directors of the company. The complainant had deposited certain amount with the petitioner-company and in lieu of repayment of said amount, cheque No.398805 dated 30.12.2014 amounting to Rs.19,00,000/- which was of ICICI Bank Limited Civil Lines Raipur Branch was issued to the complainant. When the said cheque was deposited by the complainant in his bank account for its clearance, the said cheque was dishonored by the payee bank on 22.01.2015. A demand notice was sent on 13.02.2015 to the petitioner No.1/company and ultimately a complaint case was filed under Section 138 of the NI Act against the petitioner No.1- company. The complaint case was filed on 10.03.2015 before the trial court and the same was registered on 20.11.2015 and process was issued against the petitioner No.1. The details of offence was explained to the petitioner No.1 on 07.09.2021 and the trial court proceeded for trial of the case. 6. On 16.02.2023, the respondent/respective complainants in all the cases have filed an application under Section 319 CrPC for impleading the company and another Director Smt. Shikha Manjhi W/o 5 Tarak Ranjan Manjhi (in Complaint Case No.RCC 4580/2014) and the Directors of company Tarak Ranjan Manjhi and Smt. Shikha Manjhi (In Complaint Case No.RCC 9896/2015 and 9901/2015) as the party accused No.2&3. The said application was replied by the respective accused on 21.02.2023 and after hearing the parties, the trial court has allowed the application vide its order dated 16.03.2023 and directed the present petitioner No.1&3 to be made as an additional accused No.2&3 in the complaint case, which is under challenge in these petitions. 7. Learned counsel for petitioners would submit that after filing of complaint case before the trial court, the additional accused cannot be added at the subsequent stage that too after the limitation period prescribed for filing of the complaint under Section 138 of NI Act. Section 141 of the NI Act clearly provides that a company as well as the person who conducted the business of the company and who signed the cheque should be made as a party on its very inception and without impleading the company as well as the person responsible as party respondent/accused, complaint case is not maintainable. There is no statutory notice served upon the company and other persons to whom they sought to be arrayed and no cause of action arose against them. Therefore, in view of the provisions of Section 138 and 141 of NI Act, since no cause of action arose against the company as well as the proposed accused, they cannot be added as accused persons after its limitation period. Further, there is no allegation that the petitioner No.3 is responsible for day to day business of the company being the Director and in absence of any averment, she cannot be impleaded as additional accused in the case. The defect in the complaint case 6 cannot be rectified and the complaint case is not maintainable and the additional accused cannot be permitted to be added by an order passed under Section 319 CrPC. He would further submit that there is no specific averment against the company for the commission of the offence under Section 138 of NI Act and only those persons who at the time commission of offence were in charge of the affairs of the company are were Director, Manager or other Officers with whose consent and connivance the offence has been committed, only they could be impleaded as the accused persons. Therefore, the impugned order is passed in utter violation of the statutory provisions under the NI Act and the same is liable to be set aside. 8. Learned counsel for respondents (in CRMP No.887 of 2023) would supported the impugned order and have submitted that in the complaint, the complainant has made the company as a party accused and he filed an application for impleading the Director of the company as the additional accused. The defect is a curable defect and the Directors can be made as additional accused in the complaint as the company has already been served with a legal demand notice and the present proposed accused persons have represented the company, therefore, there is no necessity to serve individual notice upon them. Therefore, the trial court has rightly passed the order directing impleadment of the additional accused persons in the complaint and there is no merit in the petition and the same is liable to be dismissed. 9. None appears for respondents in CRMP Nos. 882 of 2023 and 906 of 2023 though served. 10. I have heard the counsel for the parties and perused the documents filed along with petitions. 7 11. The copy of the complaint memo filed before the trial court has been annexed in the petition as Annexure A/5 and it has been shown that in the complaint the complainant has made the petitioner No.2 as an accused with the following details: “Tarak Ranjan Manjhi S/o Shri Sushil Ranjan Manjhi, Aged About 35 Years, R/o Kohinur Villa, Amlideeh, Near Sent Joseph School, Raipur, Tahsil & District Raipur. M/s J.S.T. Homes Private Limited, Registered Office, 3rd Floor, Sai Chamber, Gurudwara Road, Shayam Nagar, Telibandha, Raipur, District Raipur, Chhattisgarh.” 12. The copy of cheque which has been annexed at page No.51 of the petition clearly demonstrate that the cheque was issued on behalf of JST Homes Pvt. Ltd. but admittedly the company has not been arrayed as an accused in complaint case No.RCC 4580/2014 and the Directors of the company have not been arrayed as the accused persons in complaint case No.RCC/9896/2015 and 9901/2015. 13. Dealing with similar issue wherein only directors of company is made the accused, leaving the company, the complaint under Section 138 of Negotiable Instruments Act would not lie. In recent judgment in case of Hindustan Unilever Ltd. v. State of Madhya Pradesh (2020) 10 SCC 751, at para 23 the Court held the person who is in charge of and responsible to the company for the conduct of business would be guilty of the offence. Para 23 is reproduced hereinbelow : “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 8 failure of the trial court to convict the Company renders the entire conviction of the nominated person as unsustainable.” 14. Likewise in case of Himanshu v. B.Shivamurthy & Another (2019) 3 SCC 797, the Supreme Court held that commission of offence by the company is an express condition precedent to attract the vicarious liability of others and the word “as well as the company” makes it clear when the company can be prosecuted, then only the persons mentioned in the other categories could be vicariously liable for the offence subject to the averments in the petition and proof thereof that the company is a juristic person. At para 7, 8, 9,10, 12 & 13 held as under : “7. The first submission on behalf of the appellant is no longer res integra. A decision of a three-Judge Bench of this Court in Aneeta Hada v. Godfather Travels and Tours Private Limited (2012) 5 SCC 661 governs the area of dispute. The issue which fell for consideration was whether an authorized signatory of a company would be liable for prosecution under Section 138 of the Negotiable Instruments Act, 1881 without the company being arraigned as an accused. The three Judge Bench held thus: (SCC p.688 para 58)- “58. Applying the doctrine of strict construction, we are of the considered opinion that commission of offence by the company is an express condition precedent to attract the vicarious liability of others. Thus, the words “as well as the company” appearing in the section make it absolutely unmistakably clear that when the company can be prosecuted, then only the persons mentioned in the other categories could be vicariously liable for the offence subject to the averments in the petition and proof thereof. One cannot be oblivious of the fact that the company is a juristic person and it has its own respectability. If a finding is recorded against it, it would create a concavity in its reputation. There can be situations when the corporate reputation is affected when a director is indicted.” In similar terms, the Court further held: (SCC p.688, para 59) “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. 8. The judgment of the three-Judge Bench has since beenfollowed by a two-Judge Bench of this Court in Charanjit PalJindal vs. L.N. Metalics (2015) 15 SCC 768. There is merit in the second submission which has been urged on behalf of the appellant as well. The proviso to Section 138 contains the pre-conditions which must be fulfilled 9 before an offence under the provision is made out. These conditions are: (I) presentation of the cheque to the bank within six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (ii) a demand being made in writing by the payee or holder in due course by the issuance of a notice in writing to the drawer of the cheque within thirty days of the receipt of information from the bank of the return of the cheques; and (iii) the failure of the drawer to make payment of the amount of money to the payee or the holder in due course within fifteen days of the receipt of the notice. 9. In MSR Leathers vs. S. Palaniappan (2013) 1 SCC 177, this Court held thus : (SCC p.188 para 12)- “12. The proviso to Section 138, however, is all important and stipulates three distinct conditions precedent, which must be satisfied before the dishonour of a cheque can constitute an offence and become punishable. The first condition is that the cheque ought to have been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. The second condition is that the payee or the holder in due course of the cheque, as the case may be, ought to make a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. The third condition is that the drawer of such a cheque should have failed to make payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice. It is only upon the satisfaction of all the three conditions mentioned above and enumerated under the proviso to Section 138 as clauses (a), (b) and (c) thereof that an offence under Section 138 can be said to have been committed by the person issuing the cheque.” 10. The importance of fulfilling these conditions has been adverted to in a recent judgment of a two-Judge Bench of this Court in N. Harihara Krishnan vs. J. Thomas (2018) 13 SCC 663. Adverting to the ingredients of Section 138, the Court observed as follows: “26. ….Obviously such complaints must contain the factual allegations constituting each of the ingredients of the offence under Section 138. Those ingredients are: (1) that a person drew a cheque on an account maintained by him with the banker; (2) that such a cheque when presented to the bank is returned by the bank unpaid; (3) that such a cheque was presented to the bank within a period of six months from the date it was drawn or within the period of its validity whichever is earlier; (4) that the payee demanded in writing from the drawer of the cheque the payment of the amount of money due under the cheque to payee; and (5) such a notice of payment is made within a period of 30 days from the date of the receipt of the information by the payee from the bank regarding the return of the cheque as unpaid.” 12. The provisions of Section 141 postulate that if the person committing an offence under Section 138 is a company, every person, who at the time when the offence was committed was in charge of or was responsible to the company for the conduct of the business of the 10 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. 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.” 15. In case of Aneeta Hada Vs. Godfather Travels & Tours Private Limited (2012) 5 SCC 661, the Supreme Court held that in order to maintain a prosecution against the Director, the company would be a necessary party. At para 3, 7, 58 & 59, the Court held as under : “3. The core issue that has emerged in these two appeals is whether the company could have been made liable for prosecution without being impleaded as an accused and whether the directors could have been prosecuted for offences punishable under the aforesaid provisions without the company being arrayed as an accused. 7. While assailing the said order before the two-Judge Bench, the substratum of argument was that as the Company was not arrayed as an accused, the legal fiction created by the legislature in Section 141 of the Act would not get attracted. It was canvassed that once a legal fiction is created by the statutory provision against the Company as well as the person responsible for the acts of the Company, the conditions precedent engrafted under such deeming provisions are to be totally satisfied and one such condition is impleadment of the principal offender. 58. Applying the doctrine of strict construction, we are of the considered opinion that commission of offence by the company is an express condition precedent to attract the vicarious liability of others. Thus, the words “as well as the company” appearing in the Section make it absolutely unmistakably clear that when the company can be prosecuted, then only the persons mentioned in the other categories could be vicariously liable for the offence subject to the averments in the petition and proof thereof. One cannot be oblivious of the fact that the company is a juristic person and it has its own respectability. If a finding is recorded against it, it would create a concavity in its reputation. There can be situations when the corporate reputation is affected when a director is indicted. 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. We say so on the basis of the ratio laid down in State of Madras v. C.V. Parekh [(1970) 3 SCC 491 : 1971 SCC (Cri) 97] which is a three-Judge Bench decision. Thus, the view expressed in Sheoratan Agarwal v. State of M.P. [(1984) 4 SCC 352 : 1984 SCC (Cri) 620] does not correctly lay down the law and, accordingly, is hereby overruled. The decision in Anil Hada v. Indian Acrylic Ltd. 11