Sangita Agarwal, aged about 47 years, W/o Ajay Kumar Agarwal, R/o Plot No. C-37 v. 1. The State of Jharkhand 2. Manish Kumar, S/o Kedar Nath Sharma, R/o Sector
Case Details
1 Cr.M.P. No. 2773 of 2022 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 2773 of 2022 Sangita Agarwal, aged about 47 years, W/o Ajay Kumar Agarwal, R/o Plot No. C-37, City Centre, P.O. & P.S.- Sector 4, Dist.- Bokaro, Jharkhand- 827004 ........Petitioner Versus 1. The State of Jharkhand 2. Manish Kumar, S/o Kedar Nath Sharma, R/o Sector IV/F, Q. No. 4103, P.O. & P.S.- Sector IV, Dist.- Bokaro- 827004 ........... Opposite Parties For the Petitioner For the State For the O.P.No. 2
Legal Reasoning
: Mr. Baibhaw Gahlaut, Adv. : Ms. Kumari Rashmi, Addl.PP : Mr. Mukesh Kumar, Adv. P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties. 2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer for quashing the entire criminal proceeding arising out of the order dated 10.08.2018 passed by learned JMFC, Bokaro in connection with Complaint Case no. 186 of 2018 by which, learned Magistrate, has taken cognizance for the offence punishable under Section 138 of NI Act against the petitioner only. 3. The brief facts of the case is that the petitioner took a friendly loan of Rs. 3,00,000/- and issued a cheque on behalf of the partnership firm in the name and style of M/s New Saree Sangam, in the capacity of authorized signatory of the said partnership firm for Rs. 3,00,000/-. The cheque was presented by the complainant- opp. party no. 2 in the bank and on 18.12.2017, the cheque was dishonoured due to insufficiency of fund in the said bank account of the partnership firm in the name and style of M/s New Saree Sangam. The complainant-opp. party no.2 issued a notice of demand dated 17.01.2018, by registered post though the 2 Cr.M.P. No. 2773 of 2022 same was received by the petitioner, but the petitioner did not pay the amount within 15 days of the receipt of such notice of demand and the complainant instead of arraying the partnership firm in the name and style of M/s New Saree Sangam, as the accused filed the complaint case only against the petitioner in her personal capacity. Consequent upon that, vide order dated 10.08.2018 in Complaint Case No. 186 of 2018, learned JMFC, Bokaro took cognizance against the petitioner only under Section 138 of NI Act. 4. Learned counsel for the petitioner relies upon the judgment of the Hon’ble Supreme Court of India in the case of the Dilip Hiraramani vs Bank of Baroda reported in 2022 0 Supreme SC 417, para 14 of which, reads as under: “14. The provisions of Section 141 impose vicarious liability by deeming fiction which presupposes and requires the commission of the offence by the company or firm. Therefore, unless the company or firm has committed the offence as a principal accused, the persons mentioned in sub-section (1) or (2) would not be liable and convicted as vicariously liable. Section 141 of the NI Act extends vicarious criminal liability to officers associated with the company or firm when one of the twin requirements of Section 141 has been satisfied, which person(s) then, by deeming fiction, is made vicariously liable and punished. However, such vicarious liability arises only when the company or firm commits the offence as the primary offender. This view has been subsequently followed in Sharad Kumar Sanghi v. Sangita Rane, 17[(2015) 12 SCC 781 : “11. In the case at hand as the complainant's initial statement would reflect, the allegations are against the Company, the Company has not been made a party and, therefore, the allegations are restricted to the Managing Director. As we have noted earlier, allegations are vague and in fact, principally the allegations are against the Company. There is no specific allegation against the Managing Director. When a company has not been arrayed as a party, no proceeding can be initiated against it even where vicarious liability is fastened under certain statutes. It has been so held by a three-Judge Bench in Aneeta Hada v. Godfather Travels and Tours (P) Ltd. in the context of the Negotiable Instruments Act, 1881.”] Himanshu v. B. Shivamurthy and Another, 18[(2019) 3 SCC 797 : “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.”] and Hindustan Unilever Limited v. State of Madhya Pradesh19[(2020) 10 SCC 751 : “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 failure of the trial court to convict the Company renders the entire conviction of the nominated person as unsustainable.”]. The exception carved out in Aneeta Hada (supra), 20[The exception would be when the company itself has ceased to exist or cannot be prosecuted due to a statutory bar.] which applies when there is a legal bar for prosecuting a company or a firm, is not felicitous for the present case. No such plea or assertion is made by the respondent.” (Emphasis supplied) 3 Cr.M.P. No. 2773 of 2022 and submits that in the absence of partnership firm being arrayed as an accused, the petitioner having signed the cheque as an authorized signatory of the firm on its behalf in the absence of notice of demand being served upon the partnership firm in the name and style of M/s New Saree Sangam, and thus without compliance of the proviso to Section 138 of NI Act, learned JMFC, Bokaro, the learned Magistrate has committed gross error in taking the cognizance of the offence punishable under Section 138 of the NI Act against the petitioner only, hence, it is submitted that the entire criminal proceeding arising out of the order dated 10.08.2018 passed by learned JMFC, Bokaro in connection with Complaint Case no. 186 of 2018 be quashed and set aside. 5. Learned Addl. PP and learned counsel for the opp. party no. 2 on the other hand, vehemently opposes the prayer for quashing the entire criminal proceeding arising out of the order dated 10.08.2018 passed by learned JMFC, Bokaro in connection with Complaint Case no. 186 of 2018 and submits that the facts of the case of Dilip Hiraramani vs Bank of Baroda (supra) is entirely different from the facts of this case, in the sense that in this case, petitioner herself took the friendly loan in her personal capacity hence, the ratio of Dilip Hiraramani vs Bank Of Baroda is not applicable to the facts of this case, hence, this criminal miscellaneous petition being without any merit be dismissed. 6. Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that the corollary of the judgment passed by the Hon’ble Supreme Court of India in the case of Dilip Hiraramani vs Bank of Baroda (supra), is that in case, a cheque is issued on behalf of the partnership firm by its authorized signatory, then the notice demanding payment of money mentioned in the cheque, by giving notice in writing to the partnership firm is also a sine qua non and arraying the partnership firm as an accused, is also, the requirement of law and the complainant having not done, so this 4 Cr.M.P. No. 2773 of 2022 court has no hesitation in holding that the order taking cognizance dated 10.08.2018, only against the petitioner in her individual capacity, though the cheque was admittedly not issued by her in her individual capacity, rather as an authorized signatory of the partnership firm, is not sustainable in law. Therefore, the continuation of the same will amount to abuse of process of law, and this is a fit case where the entire criminal proceeding arising out of the order dated 10.08.2018 passed by learned JMFC, Bokaro in connection with Complaint Case no. 186 of 2018 be quashed and set aside. 7. Accordingly, the entire criminal proceeding arising out of the order dated 10.08.2018 passed by learned JMFC, Bokaro in connection with Complaint Case no. 186 of 2018 is quashed and set aside.
Decision
8. In the result, this criminal miscellaneous petition is allowed and in view of the disposal of this criminal miscellaneous petition, the interim order, if any, passed earlier, stands vacated. High Court of Jharkhand, Ranchi Dated, the 21st November, 2023 Smita /AFR (Anil Kumar Choudhary, J.)