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Allahabad High Court · body

2014 DIGILAW 2518 (ALL)

Poonam Singh v. State of U. P.

2014-08-19

ARVIND KUMAR TRIPATHI

body2014
JUDGMENT Hon'ble Arvind Kumar Tripathi, J. Heard learned counsel for the applicants, learned AGA and perused the record. 2. The present application under Section 482 Cr.P.C. has been filed with the prayer to quash the orders dated 2.7.2014 passed by CJM, Etah, in complaint case no.109/2004 as well as order dated 19.7.2014 passed by Sessions Judge, Etah allowing the impleadment and amendments of the applicants as co-accused in complaint case and proceeding of aforesaid complaint case. 3. Learned counsel for the applicants submitted that the complaint has been filed against the signatory of the cheque, who is Director of the company and if company was not made party then complaint was liable to be rejected on this ground. Since revisional court permitted for impleadment of the company hence on application of the complainant applicants have been implicated. The applicants no.1 and 2 have been impleaded merely because they are Director though there was no specific averment by the applicants that they were required to be impleaded and there was no direction by the lower revisional court regarding impleadment of all the Directors hence impugned order about impleadment is liable to be quashed in view of judgment of the Apex Court in case of National Small Industries Ltd. Vs. Harmeet Singh Paintal & Another, 2010 (3)SCC 330 and SMS Pharmaceuticals Ltd. Vs. Neeta Bhalla 2005 (8) SCC 89 : 2005 (SCC Crl.) 1975. 4. Learned AGA opposed the aforesaid prayer. 5. Considered the submission of learned counsel for the parties. In view of the judgment of the Apex Court in case of SMS Pharmaceuticals Ltd. (supra), which was followed in the case of National Small Industries Ltd. (supra), the primary responsibility is on the complainant to make necessary averments in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no presumption that every partner/Director knows about the transaction. Under section 141 cr.p.c. all the Directors are not liable to be prosecuted for offence and the criminal liability can be fastened on those who, at the time of the commission of the offence, were in charge of and were responsible to the firm for the conduct of the business of the company. In the application there is no such averment. In the application there is no such averment. Hence the court concerned, where proceeding is pending, under the N. I. Act is required to consider the application for impleadment afresh by considering objection of the applicant and provision under section 141 Cr.P.C. Even lower revisional court has not directed for impleadment vide order dated 19.7.2014 of all the Directors but only direction was for impleadment of the company i.e. applicant 3. 6. Till fresh order is passed the effect and operation of the order dated 24.7.2014 passed on impleadment application shall remain suspended. Accordingly, present application, under section 482 Cr.P.C., is finally disposed off.