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2016 DIGILAW 1167 (ORI)

Ranjan Kumar Ray v. State of Orissa

2016-11-29

B.K.NAYAK

body2016
ORDER : CRLMC No. 2601 of 2013 & CRLMC No. 2603 of 2013 Heard learned Counsel for the parties. 2. There two Criminal Misc. Cases under Sections 482, Cr.P.C. are between the same parties, involving the same question of law and, therefore, they are heard analogously and being disposed of by this common order. 3. The petitioners are the accused persons and opposite party No. 2 is the complainant in I.C.C. Case No. 248 of 2010 and I.C.C. Case No. 1498 of 2009 of the Court of the learned S.D.J.M. (S), Cuttack and J.M.F.C., Cuttack respectively. Both the complaint cases are under Section 138 of the N.I. Act. The petitioners challenge the order of cognizance dated 22.04.2010 and 28.12.2009 respectively passed in the aforesaid complaint cases. 4. The only contention raised by the learned Counsel for the petitioners is that in view of the averments made in the complaint petition to the effect that the cheques in question in both the cases was issued towards discharge of liability by a registered company of which petitioner Nos.1 and 2 are Director and Managing Director respectively, without the company being impleaded or arrayed as accused, the complaint was not maintainable and, therefore, the order of cognizance in both the cases are vitiated. It is also submitted that the petitioners after the cognizance orders were passed, filed petitions before the concerned Magistrate challenging the maintainability of the complaint petitions, but the Magistrates rejected the petitions holding that they have no power to review or recall the cognizance orders already passed by him. In fact as per the averments made in the complaint petitions, the petitioners are the Director and the Managing Director respectively of M/s. Priyarani Dairy-Tech Pvt. Ltd., which is admittedly a registered company and the cheques involved in the complaint cases were issued by the petitioners on behalf of the company. There is no dispute over the proposition as has been held by the Hon'ble Apex Court in the decision reported in (2012) 5 SCC 661 Aneeta Hadu v. M/s. Godfather Travels & Tours Pvt. Ltd. that in terms of Section 141 of the N.I. Act, it is imperative that the company as well as the officers of the company responsible for the management or authorized to issue cheques, are to be arrayed as accused for prosecution under the Act. It was further explained that the words "as well as" used in Section 141 of the Act are to be understood to include the company as well as Director and/or other officers who are responsible for the acts of the company. 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. 5. This Court has followed the aforesaid dictum of the Hon'ble Supreme Court in the case of Managing Director, Ores Ispat (P) Ltd. v. Sri Dusmant Kar, 2016 (II) OLR 422. 6. Having regard to the averments made in the complaint petitions and the admitted factual position that the petitioners are the Director and the Managing Director respectively of a registered company and issued the cheques in question on behalf of the company, without arraigning of the company itself as an accused, the complainants are not maintainable. Therefore, the impugned orders of cognizance are vitiated. Accordingly, both the Criminal Misc. Cases are allowed and impugned orders of cognizance are quashed. Issue urgent certified copy. CRLMC allowed.