✦ High Court of India · 20 Aug 2025

The High Court · 2025

Case Details High Court of India · 20 Aug 2025

Court

High Court of India

Decided

20 Aug 2025

Bench

K SUJANA XVR ADDITIONAR XVI ADDITIONAL XVT ADDITIONAR ADDITIONAL

Length

3,832 words

Acts & Sections

Code of Criminal Procedure §138 Code of Criminal Procedure §3 Code of Criminal Procedure §319 Code of Criminal Procedure §319C

M/s. Bombay Colour Agency, Having its registered office at 3-4-192- Tobacco Bazzar Secunderabad, Rep by its authorized signatory Sri Bupesh Shah S/o Gshah. AND ...Petil oner/Complainant

1. State of Telangana, through its. Rep. by its Public Prosecutor, High Court, Hyderabad.

2. Surya Jyothi Spinning Mills Ltd, aerj , oi its Mdnaging director Ravindra Kumar Agarir al., Died (Nbw Presenlly Arun Kumar Agarutrat)

3. Surya Jyothi Spinning Mills Ltd, Red.- uri its Exbcutive Director, Arun Kumar Agarwal Stj Not known to petitioner, 7h floor, Surya Towers, S.P.Road Secundrabad 50003

4. Arun Kumar Agarwal, S/o Late Sri.Ravindra Kumar lr iarwal, Aged about 47 years, Occ. Nil, R/o 105, 7th floor, Surya towers, S.P.Road, Secunderabad. (Respondent No.4 impleaded as per Court Order Dt ( 9/07/2025 Vide lA No.3i2025 Made in Crlp No.4242t2o25) "'Respondents Petition under Section 528 of BNSS praying tt i t in the circumstances stated in the Memorandum of Grounds of criminal Petitior the High court may be pleased to set aside the order dated i9.i't .2024 passed in Crl.M.P. No. 33 cf 2023 in c.c. No. 204894 of 2018 on the fire of the court of the XVt Additionar Judge cum xx Additionar chief Judiciar Magiskate city civir court at secunderabad. l.A. NO;2 oF 2025 Petition under Section 52g of BNSS praying that in the circumstances stated in the Memorandum of Grounds of criminar petition, the High court may be preased to suspend the order dated 19.1 1 .2024 passed in crl'M'P No. 33 of 2023 in c-c. No. 2o4*g4 of fr18 on the fire of the XVr Additional Judge cum XX Additionar chief Judiciar Magistrate city civir court at Secunderabad. Criminal Petition No:4213 ot 2025 Between: M/s. Bombay Colour Agerrcy, Havrng tts registered office at 34-192 I obacco Bazzar Secunderabad, Rep by its authorized signatory Sri Bupesh Shah S/o. G-shah. AND 1 State of Telangana, llprqh its $ep by its pubtic prosecuror, High Court, Hyderabad. Petitioner/Complainant 2 3 4 Surya Jyothi Spinning Miils Ltd, 5ffa'r&[,]l:#,ff,1;%?,1f "i:."ff x!:,.fl [y,",n0,*,r, Surya Jyothi Spinning Mills Ltd, 89p,, by its Executive Director, Arun Kumar Aoarwat S/o Nolknown to petitioner, 7tn floor, Surya Towers, S.p.Road Secundrabid SOOO3 Arun. Kuma.r Agarwal, S/o La.te Sri.Ravindra Kumar Agarwal, Aged about 47 years, Occ. Nil, R/o 105, 7th floor, Surya towers, S. P. Road, Secunderabad. (Respondent No.4 impreaded as qer court order Dt;09/07l2025 Vide rA No.3/2025 Made in Citp No.42a3)2025i- ' - --' """-" ...Respondents PetitionunderSection52SofBNSSprayingthatinthecircumstances stated in the Memorandum of Grounds of criminal Petition, .he High court may be pleased to set aside the order dated 19.1 1 .2024 passed in ( rl.M.P. No. 28 of 2023 in c.c. No. 205248 of 20't8 on the file of the court of thr XVI Additional Judge cum XX Additional chief Judicial Magistrate city civil court at Secunderabad. l.A. NO: 2OF 2025 Petition under Section 528 of BNSS praying tha in the circumstances stated in the Memorandum of Grounds of criminal Petitior, the High court may be pleased to suspend the order dated 19.11.2024 passed in t )rl.M.P. No. 32 of 2023 inC.C.No.204Sg5of2018onthefileoftheXVlAdcltionalJudgecumXX Additional Chief Judicial Magistrate City Civil Couft at Se'r rnderabad' Criminal Petition No: 4249 of 2O25 Between. M/s. Bombay Colour AgencY, Hav.ing its registered office at 34-192 Tobacco Bazzar Secunderabad, Rep by its authorized signatory Sri Bupesh Shah S/o. Gshah. AND Pelil oner/Complainant

1. State of Telangana, through its- Rep. by its Public Prosecutor, High Court, Hyderabad.

2. Surva Jvothi Spinninq Mills Ltd, neri , tri its Mdnaging director Ravindra Kumar Agaru al., Didd (Nbw Presently Arun Kumar Aganrtral)

3. Surya Jyothi Spinning Mills Ltd, neri.. Uri its Exbcutive Director Arun Kumar Agarwal S/<j Not known to petitioner, 7h floor, Surya Towers, S.P.Road Secundrabad 50003

4. Arun Kumar Agarwat, Sio Late Sri.Ravindra Kumar /\ larwal' Aged abcut 47 years, Orc. Ni!, R/o 105, 7th floor, Surya towers, S.P.Road, Secunderabad. (Respondent No.4 impleaded as per Court Order Dt ( 910712025 VidelA No.3i2025 Made in crlp No.4249l2025) .-.Respondents Petition under section s2B of BNSS praying that in the circumstarrces stated in the MemoraMum of Grounds of criminar petition, the High court may be pleased to set aside the order dated 19.11.2024 passed in crl.M.p. No. 2g of 2023 in c.c. No. 205248 of 2018 on the file of the court of the XVr Additionar Judge cum XX Additionar chief Judiciar Magistrate city civir court at secunderabad. l.A. NO: 2 OF 2o25 Petition under section 528 of BNSS praying that in the circumstances stated in the Memorandum of Grounds of criminal petition, the High court may be pleased to suspend the order dated 19.11.2024 passed in crl.M.p. No. 32 of 2023 in c.c. No. 204895 of 2018 on the fire of the XVr Additionar Judge cum XX Additional Chief Judicial Magistrate City Civil Court at Secunderabad. This Petition coming on for hearing, upon perusing the Memorandum of Grounds of Criminal petition and upon hearing the arguments of Sri Vishal Kumar Jain, Advocate for the petitioner and the Additional public Prosecutor on behalf of the Respondent No.1, and of Sri Sharad Sanghi, Advocate for the Respondent Nos. 2 to 4. The Court made the foltowing: COMMON ORDER THE HONOURABLE SMT. JUSTICE K. SUJANA CRIIIINAL PEf,ITION Nos.4595, 4242, 4243 AIID 4249 of 2025 COMMON ORDER: Since the issue involved in atl these criminal petitions are one and the same, they are being heard together ald being disposed of by way of this common order.

2. These Criminal Petitions are filed seeking to set aside the order dated 19. ll.2024 passed in Crl.M.P.Nos.3O, 33' 28 and 32 of 2023 in C.C.Nos.204885, 2O4A94, 205248 and 204895 of 2O18, respectively, by the learned XVI Additional Judge-cum-XX Additional chief Judicial Magistrate, City Civil Court, Secunderabad.

3. The brief facts of the cases are that tlle petitioner/complainant in all the cases had hled petitions, respectively, under Section 319 Cr.P.C. seeking to include Mr' Arun Kumar Agarwal, Executive Director of the accused company, as accused No-3 in the original complaint frled under Section 138 of the Negotiable Instruments Act, staLing that though notices were issued to both the Managing Director 2 SKS,J Crl.P.[o.4S95 c '2025 and batch and Executive Director before filing the complai.t ., they were not made parties in their personal capacities, :rn I that since the Executrve Director had sigrred the cheque on rehalf of r.he company, he was a necessary party for adjudicati: -r.

4. The respondents/ accused opposed tl e petition contending that Section 319 Cr.p.C. was inapp icable to a complaint under Section t 38 N.l. Act, that t lt : complaint lacked the mandatory averments under Section I 4l N.l. Act, that ttre statutory time limits under Sections l3g Lnd 142 N.l. Act had already expired, and that the petition v,r s filed with mala 11d.e intent to abuse process.

5. The trial Court, after considering the rival ubmissions and relying on various Supreme Court decisions vide order dated 19.11.2024, dismissed the petitions holc i rg that the petitioner was required to plead all mandatory ir gredients of Sections 138 and 141 N.l. Act in the originrLr cornplaint, including specihc averments regarding vicarious I ability, and that the proposed accused could not be added a the stage of cross-examination of PW1 when such requiremer ts were not complied with and that the complaint, hled in rI r year 201g, 3 SKS,J Crl.P.Ito..+595 of 2()25 and batch did not satisfu these statutory requirements, and the present petition filed in the year 2O23 was devoid of merit. Aggrieved thereby, the petitioner ftled the present criminal petitions.

6. Heard Sri Vishal Kumar Jain, Iearned counsel appearing on behalf of the petitioner as well as Sri M. Vivekananda Reddy, learned Assistant Public Prosecutor appearing on behalf of respondent No.l - State and Sri Sharad Sanghi, learned counsel appearing on behalf of respondent Nos.2 to 4.

7. l,earned counsel for the petitioner had submitted that the order of ttre Magistrate was improper, perverse in law, and untenable and that the trial Court had not properly examined the records, including the initial notice and documents filed with the complaint, and had therefore erred in passing the impugned order. He further submitted that under Section 141 of the N.I. Act, when an offence under Section 138 was committed by a company, the persons in charge of and responsible for the conduct of its business should also be impleaded as accused along with the company. 4 sKs,J Crl.P.Ito,4595 ( f 2025 and batch

8. Learned counsel for the petitioner conter.( ed that the order was erroneous, mechanical, and based or, a ssumptions, anci was contrary to settled principles iaici ,i rwn by the Hon'ble Supreme Court and various High Court; He argued that there was no doubt about the involver rent of the proposed party, as he was the person who hz.< signed the cheque, thereby having a direct nexus with the ol 'ence, which could not be ignored. He further contended thr . the corpus delicti against the proposed accused had l ready been cstabiishcd, yet the Court haci unjustly d i: -;---r rl - application and that the trial Court had failed tt, :onsider [he legal precedents cited and had dismissed the gx tition under Section 319 Cr.P.C. solely on the ground of deleL' , which r,r'as noi legally susiainable. Therefore, he prayed th: Court to set aside the orders of the trial Court by allowing tt ese criminal petitions.

9. In support of his submissions, he relie i upon the judgment of the Hon'ble Supreme Court in Su. rhpal Singh 5 sl(s,J CrI.P.Ito.4595 of 2()25 and batch Khaira v. The State of Punjs$1, wherein in paragraph No.37, it is held as follows: "37. We have also kept in view the point by point analysis of the object and power to be exercised under Section 319CrPC, as has been indicated in SCC para 15 : SCC Onl-ine SC para 34 of Manjeet Singh v. State of Haryana [Manjeet Singh v. State of Har1rana, (202ll 18 SCC 321 : 2021 SCC Online SC 6321 .

38. For all the reasons stated above, we answer the questions referred as hereunder.

39.(I) Whether the trial court has the power under Section 319CrPC for summoning additional accused when the trial with respect to other co accused has ended ald the judgment of conviction rendered on the sarne date before pronouncing the summoning order? The power under Section 319CrPC is to be invoked and exercised before the pronouncement of the order of sentence where there is a judgment of conviction of the accused- In the case of acquittal, the power should be exercised before the order of acquittal is pronounced. Hence, the summoning order has to precede the conclusion of trial by imposition of sentence in the case of conviction lf the order is passed on the same day, it will have to be examined on the facts and circumstances of each 1 criminal Appeal No.885 of 2019 6 sKsi,J Crl.P.f,o./+595 r f 2025 and batch case and if such summoning order is passed ei her after the order of acquittal or imposing sentenc : in the case of conviction, the same will not be sustainable.

40.(lI) Whether the trial court has ttre power L r der Section 319CrPC for summoning additional accr sed when the trial in respect of certain ottrer abscorr ing accused (whose presence is subsequently sec-r'ed) is ongoing/ pending, having been bifurcated f om the main trial? The trial court has the power to summon additi( nal accused when the trial is proceeded in respect (,f the absconding accused after securing his pres,t ,ce, subject to the evidence recorded in the splir up (bifurcated) trial pointing to the involvement of rhe accused sought to be sumrnoned. But the evicr -rce recorded in the main concluded trial cannot b,r the basis of the summoning order if such power has not been exercised in the main trial till its conclusicr . aL.(llt) What are the guidelines that the comp,r ent court must follow while exercising power ur ler Section 3 l9CrPC? 4i.i. If the competent court finds evidence c if application under Section 319CrPC is I led regarding involvement of any other lrrsolr in committins the oflence based on evidence reccr ted at any stage in the trial before passing of the (, ler on acquittal or sentence, it shall pause the tria at that stage. 7 sxs,., Crl.P.No.4595 of 2025 atrd batctr

41.2. The court shall thereupon arrst decide the need or otherwise to summon the additional accused and pass orders thereon.

41.3. If the decision of the court is to exercise the power under Section 319CrPC and summon the accused, such summoning order shall be passed before proceeding further with the trial in the main case.

41.4. If the summoning order of additionat accused is passed, depending on the stage at which it is passed, the court shall also apply its mind to the fact as to whether such summorred accused is to be tried along with the other accused or separately.

41.5. If the decision is for joint trial, the fresh shall be commenced only after securing presence of tJle summoned accused.

41.6. If the decision is that the summoned accused can be tried separately, on such order being made, there will be no impediment for the court to continue and conclude the trial against the accused who were being proceeded with.

41.7. If the proceeding paused as in para 41-l abbve, is in a c.ase where the accused who were tried are to be acquitted, and the decision is that the sumrnoned accused can be tried afresh separately, there will be no impediment to pass the judgment of acquittal in the main case. 1 8 SKS,J crLP.I{o.4595 ( :2025 aad batch

41.8. tf the power is not invoked or exercised itl [he main trial till its conclusion and if there is a split up (bifurcated) case, the power ulder Section 319,1 PC can be invoked or exer:cised only if there is evict rce to that effect, pointing to the involvement o' the additional accused to be summoned in the splil up (bifurcated) trial. 4t.9- If, after arguments are heard and t1e cas: is reserved for judgment the occasion arises for- the Court to invoke and exercise the power tr der Section 319CrPC, the appropriate course fol the courl is to set it down {or re-hearing. 4 l. 10. On setting it down for re-hearing, the t-i ove laid dou'n procedure to decide about summon ng; holding of joint trial or otherwise shall be de: led and proceeded with accordingly.

41.11. Even in such a case, at that stage, it the decision is to summon additional accused and I old a joint trial the trial shall be conducted afrest rnd de novo proceedings be held.

41.12. lt, in that circumstance, the decision i to hold a separate trial in case of t].e summc red accused as indicated earlier: (a) The main case may be decided by pronoun ing the convrcl ron and sentence and tien pr(x --ed afresh against summoned accused. 9 SKS,J Crl.P.lto.4595 of 2025 aud batch (b) In the case of acquittal the order shall be passed to that effect in the main case and then proceed afresh against summoned accused."

10. On the other hand, learned counsel for the respondent No.4 submitted that the petitions hled by the petitioner were legally untenable and liable to be dismissed- He contended that Section 319 Cr.P.C. could not be invoked to add a person as an accused when the original complaint itself failed to comply with the mandatory provisions of Sections 138 and 141 of the Negotiable Instruments Act. He further submitted that the original complaint, filed in the year 2O 18, did not contain the requisite averrnents regarding vicarious liability or the specific role of the Executive Director, and therefore the proposed accused could not be added at such a belated stage' He further submitted that the petitioner had deliberately delayed tiling the petition ttll 2023, long after the statutory time limits under Sections 138 and 142 N.l. Act had expired, reflecting mala fide intent and an attempt to abuse the process of law. He emphasized that the trial Court had rightly examined the records, including the initial notice and documents, and had passed the impugned order in accordance with settled law. He contended that merely .\ 10 SKS,J Crl.P.Ito.4595 o 2O2S and batch signing a cheque on behalf of the compe r y did not automatically render ttre Executive Director pers rnally liable in the absence of specihc averments in tL r complaint demonstrating his personal role in the offence. 'he counsel submitted that the petitioner had failed to esta.l: isln a pima facie case against the proposed accused and thar rllowing the petition would prejudice the respondents anrl undermine statutory safeguards. Therefore, he prayed t.] e Court to dismiss t ht.se criminal petitions. I 1. ln the light of the submissions made I y both the learned counsel and a perusal of the material rvailable on record, it appears that the petitioner had soul1J Lt to invoke Section 319 Cr.P.C- to implead Mr. Arun Kurr ar Agarwal, Executive Director of the accused company, as a >cused No.3 in complaints hled under Section 138 of tt.t Negotiable Instruments Act, 1881, claiming that he was a signatory to the cheque and, therefore, directly involved in the alleged offence.

12. However, it is well-established that the I rovisions of Section 319 Cr.P.C., which empower a court to summon 11 sr(s,J Crt.P,Io.4595 of2025 aEd batch additional accused if they appear to be guilty of an offence' are of a general nature and are not applicable to proceedings initiated under Section 138 of the N.l. Act' As held by the Hon'ble Supreme Court in N. Harihara Krishnan v' J' Thomas2, proceedings under Section 138 are complaint- driven, governed by a special statutory scheme' and the procedure under Cr.P.C. can only apply in a limited and Section 138 offences are Person- supplementary manner. specihc and subject to strict sta-tutory requirements' including mandatory timelines for issuing notices and frting complaints' as provided under Sections 138 and 142 of fi:Le N'I' Act'

13. The original complaint, filed in the year 2O18' did not contain the mandatory averments under Section 141 N'I' Act regarding vicarious liability or the specihc role of the Executive Director in the management and conduct of the company's business at the relevant time' Mere execution of a cheque by the proposed accused, without pleading these essential facts in the original cornplaint, is insufhcient to fasten personal liability. The slatutory sctreme requires that the payee clearly identiff the drawer and allege' with factual ' 1zors1 r: scc oo: 12 sr(s,.J Ctl.P.[o.459:, f 2025 eld batch specificity, that the person was in charge of anc responsible for the conduct of the company's business, wr ch was not done in the present case.

14. Furthermore, the application under Section 319 Cr.p.C. was hled only in the year 2023, almost five ye z rs after the original complaint, well beyond the statuto r . limitation prescribed under Section 142 N.l. Act. The pr titioner has failed to provide sufficient cause or explanation br such an inordinate delay. Seeking to implead a new ac( used at the stage of cross-examination of PWl, w.ithout conr rliance with the statutory requirements, not only violates tht procedural safeguards but also amounts to an abuse of proct: s of iaw.

15. The trial Court, after considering the su b rrissions of both parties and relying on authoritative judgnLr nts, rightly held that the petitioner could not bypass the statrr ory scheme of the N.l. Act by invoking Section 319 Cr.p.C. It zr, so observed that allowing such impleadment at a late ; age would undermine the procedural integrity of the procecc r -rgs and set a precedent contrary to settled law. Further, tt : judgment relied upon by thc petitioner is not applicable to ,he facts of 13 SKIi'J Crl.P.[o.rts95 of 2O2S and batch the case on hand. Therefore, there is no illegality in the orders of the trial Court and the trial Court rightly dismissed the petitions. However, this Court does not find any merit in the criminal petitions to set aside the order of the trial Court and the same are liable to be dismissed.

16. Accordingly, these criminal petitions are dismissed conFrrming the order dated 19.11.2024 passed in Crl.M.P.Nos.3O, 33, 28 and 32 of 2023 in C.C.Nos'204885, 204894, 205248 and 204895 of 2O18, respectively, by the learned XVI Additional Judge-cum-XX Additional Chief Judicial Magistrate, Ciry Civil Court, Secunderabad- Miscellaneous applications, if any pending, shall stand closed Sd/- N. SRIHARI DEPUTY REGISTRAR //TRUE COPY// SECTION OFFICER To, 1 The XVI Additional Judge cum XX Additional chief Judicial Magistrate city Civil Court at Secunderabad 2 6; dc to StiVi"t'al Kumar Jain, Advocat^ejgiycl 5. o;; cc io Sri Sharad Sanghi Advocate- [oPUC] . ; 6;; dd io rn" FroriC pi6lEl,jtor, ttigh cburt roithe State of Telangana at 5. Two CD CoPies Hyderabad [OUTI ,W HIGH COURT DATED:201O812O25 I il]E sre \ ( o(J 2 JAN 2O2E -2. v oa. * c! S2q7-'-i)-.-",;", COMIVION ORDER CRIMINAL PET ITION Nos: 4595 4242 4243 &4249 .00F 2025 CRllillNAL PETIT|ONS ARE DisiviiSSED L v