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Himachal Pradesh High Court · body

2016 DIGILAW 2006 (HP)

Manjula Kapoor v. State of H. P.

2016-09-19

P.S.RANA

body2016
ORDER : P.S. Rana, J. Present petition is filed under Section 482 of Code of Criminal Procedure 1973 read with Article 227 of Constitution of India for quashing complaint No. 25/1 of 2009 title Pankaj Sharma vs. Manjula Kapoor filed under Section 138 of Negotiable Instrument Act 1881 and to quash consequential proceedings pending before Judicial Magistrate Barsar District Hamirpur (H.P.). Brief facts of the case 2. Pankaj Sharma complainant filed complaint under Section 138 of Negotiable Instrument Act 1881 alleging that Smt. Manjula Kapoor is one of the director of company M/s Cine prime entertainment private Ltd. having registered office at New Delhi. It is alleged that Ms. Manjula Kapoor is authorised by company to sign all papers, agreements, accounts operating, finance, petitions, affidavit, all documents required to be filed in bank, consumer forums, District Courts, High Court, Supreme Court or before any government authority or legal authority on behalf of the company. It is alleged that complainant was employed by the company on the basis of yearly package. It is further alleged that company was liable to pay an amount to the tune of Rs. 5 lacs for service rendered by complainant to the company. It is alleged that in discharge of antecedent liability cheque to the tune of Rs. five lac was given to complainant on 24.11.2008 signed by Ms. Manjula as authorized signatory on behalf of company. It is alleged that cheque Ext.CW1/A was presented for encashment before PNB Galore Branch Tehsil Nadaun District Hamirpur H.P. It is alleged that cheque was dishonoured on account of stop payment by drawer vide Ext.CW2/B placed on record. It is alleged that thereafter demand notice was issued but despite demand notice amount due was not paid and thereafter complainant filed complaint under Section 138 of Negotiable Instrument Act 1881 on 7.2.2009 before learned Judicial Magistrate 1st Class Barsar District Hamirpur H.P. It is alleged that learned Trial Court recorded preliminary evidence of CW1 Pankaj Sharma, CW2 Sudheer Kumar posted in PNB Galore Tehsil Nadaun District Hamirpur H.P. and CW3 Rakesh Kumar posted as Assistant in Post Office Mehre Tehsil Barsar District Hamirpur H.P. After recording preliminary evidence learned Trial Court on 7.12.2009 held that after perusal of complaint, affidavits, documents and oral evidence on record there are sufficient grounds to proceed against accused for commission of offence punishable under Section 138 of Negotiable Instrument Act 1881. Thereafter learned Trial Court summoned the accused for 30.1.2010. 3. Learned Trial Court put notice of accusation to accused Ms. Manjula Kapoor on 3.6.2013. Thereafter learned Trial Court recorded statements of CW1 S.N. Seth posted in PNB Branch Galore, CW2 Lalit Kishore posted in Bank of Baroda, CW3 Pankaj Sharma, CW4 Madan Lal posted in postal department Mehre and CW5 Ramtirath Sharma posted in postal department. Thereafter complainant closed the evidence on 3.2.2014. Thereafter learned Trial Court listed the case for recording statement of accused under Section 313 Cr.P.C. When the case was listed for recording statement of accused under Section 313 Cr.P.C. thereafter Ms. Manjula Kapoor accused filed present petition on 23.9.2014 before H.P. High Court. 4. Court heard learned Advocate appearing on behalf of petitioner and learned Deputy Advocate General appearing on behalf of non-petitioner No. 1 and learned Advocate appearing on behalf of non-petitioner No. 2 and also perused the record carefully. 5. Following points arise for determination in present petition:- Point No.1 Whether petition filed under Section 482 of Code of Criminal Procedure 1973 read with Article 227 of Constitution of India is liable to be accepted as mentioned in memorandum of grounds of petition? Point No.2 Final order. Findings upon Point No. 1 with reasons 6. Submission of learned Advocate appearing on behalf of petitioner that cheque Ext.CW1/A dated 24.11.2008 to the tune of Rs. five lac in favour of Pankaj Sharma complainant was issued on behalf of company by Ms. Manjula Kapoor and petitioner has no separate or individual liability against the cheque in question without impleadment of company as co-accused and on this ground petition be allowed is partly accepted for reasons hereinafter mentioned. It is well settled law that Section 141 of Negotiable Instrument Act 1881 is related to offence by company and it makes other person vicarious liable for commission of offence on the part of company. It is well settled law that vicarious liability gets attracted when condition precedent under Section 141 of Negotiable Instrument Act 1881 fulfill. It is well settled law that director or other officer of company cannot be prosecuted alone unless company is impleaded as co-accused. It is well settled law that impleadment of company as co-accused is condition precedent for prosecution of other person and when offence is committed by company. It is well settled law that director or other officer of company cannot be prosecuted alone unless company is impleaded as co-accused. It is well settled law that impleadment of company as co-accused is condition precedent for prosecution of other person and when offence is committed by company. In the present case cheque in dispute Ext.CW1/A dated 24.11.2008 to the tune of Rs. five lac was issued on behalf of company by Smt. Manjula Kapoor. Cheque Ext.CW1/A was not issued in individual capacity by Smt. Manjula Kapoor. See AIR 2012 SC 2795 title Aneeta Hada vs. M/s God Father Travels & Tours Private Ltd. It is held that by way of non-impleading of company as co-accused complainant has committed irregularity. It is well settled law that irregularity can be rectified by Court at any point of time. 7. It is well settled law that as per Section 319 of Code of Criminal Procedure 1973 where in the course of any inquiry, trial it appears from evidence that any person not being accused has committed offence then Court may proceed against such person for offence which appears to have been committed. In present case it is proved on record beyond reasonable doubt that Smt. Manjula Kapoor has signed cheque Ext.CW1/A to the tune of Rs. five lacs on behalf of M/s Cine prime entertainment private Ltd. It is proved on record that payment of cheque was stopped vide memo Ext.CW1/B by drawer i.e. M/s Cine prime entertainment private Ltd. In view of oral testimonies of (1) CW1 S.N. Seth (2) CW2 Lalit Kishore (3) CW3 Pankaj Sharma (4) CW4 Madan Lal (5) CW5 Ram Tirath it is expedient in the ends of justice to issue show cause notice to M/s Cine prime entertainment private Ltd. company under Section 319 of Code of Criminal Procedure 1973. Company appears to be guilty of offence under Negotiable Instrument Act 1881. 8. In view of documentaries evidence placed on record i.e. (1) Ext.CW1/A cheque dated 24.11.2008 to the tune of Rs. five lacs issued on behalf of M/s Cine prime entertainment private Ltd. by Manjula Kapoor. (2) Ext.CW1/D memorandum issued by PNB New Delhi Branch. (3) Ext.CW2/B memorandum issued by PNB Galore Branch District Hamirpur (H.P.) (4) Ext.CW2/A letter issued by PNB New Delhi to PNB Galore District Hamirpur (H.P.) wherein payment was stopped. (5) Ext.CW3/A postal receipt. five lacs issued on behalf of M/s Cine prime entertainment private Ltd. by Manjula Kapoor. (2) Ext.CW1/D memorandum issued by PNB New Delhi Branch. (3) Ext.CW2/B memorandum issued by PNB Galore Branch District Hamirpur (H.P.) (4) Ext.CW2/A letter issued by PNB New Delhi to PNB Galore District Hamirpur (H.P.) wherein payment was stopped. (5) Ext.CW3/A postal receipt. (6) Mark C-1 authorisation letter on behalf of company M/s Cine prime entertainment private Ltd. (7) Mark C-2 letter issued by M/s Cine prime entertainment private Ltd. to Branch Manager Bank of Baorda New Delhi authorizing Mrs. Manjula Kapoor to sign on behalf of company all negotiable instruments. (8) Mark C-3 authorization letter whereby Ms. Manjula Kapoor accused was appointed as additional director of company M/s Cine prime entertainment private Ltd. (9) Ext.CW3/C legal notice dated 20.01.2009 issued by complainant to Ms. Manjula Kapoor accused, (10) Ext.CW1/E extract of register of cheques returned. (11) Ext.CW1/F Account Ledger Inquiry placed on record, (12) Ext.CW2/A copy of transactions inquiry placed on record Court is of the opinion that it is expedient in the ends of justice to issue show cause notice to M/s Cine prime entertainment private Ltd. by learned Trial Court under Section 319 of Code of Criminal Procedure 1973 suo motu. Company appears to be guilty of offence under Negotiable Instrument Act 1881. See AIR 1979 SC 339 title Joginder Singh and another vs. State of Punjab. See AIR 2006 SC 1892 title Lok Ram vs. Nihal Singh and another. 9. Submission of learned Advocate appearing on behalf of petitioner that there is no allegation against the petitioner in complaint that petitioner was responsible for day to day affairs of company and on this ground petition be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. In para 2 of complaint complainant has specifically mentioned in detail that petitioner was responsible for day to day affairs of company. Even almost trial has been conducted by learned Trial Court and case is listed for statement of accused under Section 313 Cr.P.C. It is not expedient in the ends of justice to quash entire proceedings of learned Trial Court at this stage of case. Even almost trial has been conducted by learned Trial Court and case is listed for statement of accused under Section 313 Cr.P.C. It is not expedient in the ends of justice to quash entire proceedings of learned Trial Court at this stage of case. In present case it is proved on record that complaint under Section 138 of Negotiable Instrument Act 1881 was filed before learned Trial Court on 07.02.2009 and present petition under Section 482 Cr.P.C. to quash the complaint was filed by petitioner on 23.9.2014 after expiry of more than five years. 10. Submission of learned Advocate appearing on behalf of petitioner that as per memorandum of bank Ext.CW2/B placed on record payment was stopped by drawer and complaint under Section 138 of Negotiable Instrument Act 1881 was not maintainable ipso facto in stop payment case and on this ground petition be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. It is well settled law that when cheque is dishonoured by reason of stop payment then proceedings under Section 138 of Negotiable Instrument Act 1881 would continue in view of Section 139 of Negotiable Instrument Act 1881 wherein presumption is in favour of holder of cheque. It is well settled law that presumption is rebuttable by accused after adducing positive, cogent and reliable evidence that stop payment notice was issued because of other valid cause and that there was no existing debt or liability for encashment. See (2002)1 SCC 234 title MMTC Ltd. and another Vs. Medchl Chemicals and Pharma (P) Ltd. and another. See (1991)1 SCC 113 title Maruti Udyog Ltd. vs. Narender and others. See (1998)3 SCC 249 title Modi Cements Ltd. vs. Kuchil Kumar Nandi. In view of above stated facts point No. 1 is answered partly in yes and partly in no. Point No.2 (Final Order) 11. In view of findings upon point No.1 petition filed under Section 482 Cr.P.C. read with Article 227 of Constitution of India is partly allowed. Learned Trial Court will issue show cause notice suo motu to M/s Cine prime entertainment private Ltd. through authorized person under Section 319 of Code of Criminal Procedure 1973 in accordance with law. In view of findings upon point No.1 petition filed under Section 482 Cr.P.C. read with Article 227 of Constitution of India is partly allowed. Learned Trial Court will issue show cause notice suo motu to M/s Cine prime entertainment private Ltd. through authorized person under Section 319 of Code of Criminal Procedure 1973 in accordance with law. Thereafter learned Trial Court will implead M/s Cine prime entertainment private Ltd. as co-accused No. 2 in accordance with law and thereafter learned Trial Court would commence trial against M/s Cine prime entertainment private Ltd. afresh in accordance with law and strictly as per provisions of section 319 (4) (a) (b) of Code of Criminal Procedure 1973. Thereafter learned Trial Court will dispose of complaint strictly in accordance with law within 90 days from receipt of file because present complaint is pending since 7.2.2009 and requires expeditious disposal. Parties are directed to appear before learned Trial Court on 30.9.2016. Observations will not effect merits of case in any manner and will be strictly confine for disposal of present petition. File of learned Trial Court along with certify copy of order be sent back forthwith. Cr.MMO No. 210 of 2014 is disposed of. Pending miscellaneous applications if any also stands disposed of.