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Allahabad High Court · body

2019 DIGILAW 47 (ALL)

Sharvani Enterprises Pvt. Ltd. v. State of U. P.

2019-01-04

SIDDHARTH

body2019
ORDER : 1. Heard Sri. K.K. Dwivedi, learned Counsel for the applicant and Sri. Prateek Kumar, learned Counsel for the opposite party no. 2. 2. The above application has been filed praying for quashing the complaint and entire criminal proceedings of Case No. 1054 of 1999, under Section 138 Negotiable Instrument Act, Police Station Etmaddaula, District Agra, pending in the court of VIIIth A.C.J.M. Agra. 3. The opposite party no. 2 filed a complaint against M/s Sharvani Enterprises Pvt. Ltd. Himayat Nagar, Hyderabad and its Managing Director, Sri. G. Harinarayanan alleging that M/s Sharvani Enterprises Pvt. Ltd. was appointed as dealer of M/s Kudoz International, Foundry Nagar, Agra, after completing of formalities and goods were supplied to it by the complainant firm. There was liability of Rs. 25,27,813/- and part payment of Rs. 2 lacs was made to the applicant vide cheque No. 666178 dated 5.9.1999 drawn on State Bank of Hyderabad, Srikakulam, by G. Harinarayanan, who is Managing Director of M/s Sharvani Enterprises Pvt. Ltd. which was dishonoured on account of paucity of funds. A notice dated 11.10.1999 was sent by registered post, but no amount was paid by the accused and hence the complaint was filed. 4. The statement of witness under Section 200 Cr.P.C. was recorded and documentary evidences were filed in evidence. After considering the same, the applicant was summoned for facing trial under Section 138 N.I. Act. This application has been filed challenging the aforesaid summoning order denying any service of notice and non-mentioning of date in the statement under Section 200 Cr.P.C. regarding service of notice. 5. Learned counsel for the applicant has relied upon the judgment of the Apex Court in the case of S.M.S. Pharmaceuticals Ltd. vs. Neeta Bhalla and Another, 2005 (53) ACC 503, and has argued that the Apex Court has held that in a complaint under Section 141 of N.I. Act, it is necessary even in the complaint that at the time of commission of offence, the person-accused should be in-charge and responsible for the conduct of the business of the company. By merely implicating the Director, he cannot be held liable for the offence under Section 141 of the Act. By virtue of post held only Managing Director or Joint Managing Director can be held responsible for the conduct of the company. 6. By merely implicating the Director, he cannot be held liable for the offence under Section 141 of the Act. By virtue of post held only Managing Director or Joint Managing Director can be held responsible for the conduct of the company. 6. The second judgment relied upon is in the case of Aneeta Hada vs. M/s Godfather Travels and Tours Pvt. Ltd. 2012 (77) ACC 94, wherein the Apex Court has held that where offence is committed by the company, it is deemed that every person responsible for the acts of company is liable for the offence by the Principal due to vicarious liability. 7. Finally learned counsel for the applicant has relied upon the judgment of this Court in the case of Yogendra Kumar Khullar @ Bitto vs. State of U.P. and Another, 2012 Law Suit (All) 2123, which has been decided relying upon the judgments of Apex Court in S.M.S. Pharmaceuticals Ltd. vs. Neeta Bhalla (supra) and Aneeta Hada (supra). 8. Learned counsel for the opposite party no. 2 has placed reliance upon the judgment in the case of N. Rangachari vs. Bharat Sanchal Nigam Limited, AIR 2007 SC 1682 , wherein the Apex Court has held that the question whether the alleged accuseds were in-charge of affairs of the company at the relevant time, can be adjudged during the trial, complaint cannot be questioned on this ground. Similarly reliance on the judgment of the Apex court in the case of Paresh P. Rajda vs. State of Maharashtra and Another, AIR 2008 SC 2357 , has been placed, wherein also, the Apex Court has held that who were persons responsible for the affairs of the company would be decided in the trial and not in other proceedings. The Apex Court in the case of National Small Industries Corporation Ltd. vs. Harmeet Singh Paintal and Another, Air 2010 SC (Supp) 569, has held that in the absence of specific averment in the plaint that on the relevant date, the accused was Managing Director or person responsible for the affairs of the company, the complaint can be entertained. However, where, it is proved on the date of offence, the Director had seized to have any connection with the affairs of the company proceedings against him can be quashed. However, where, it is proved on the date of offence, the Director had seized to have any connection with the affairs of the company proceedings against him can be quashed. Reliance on the Apex Court Judgment in the case of Standard Chartered Bank vs. State of Maharastra and Others, 2016 (4) JT 197 , has been placed, wherein Apex Court has held that the averment in the complaint that the accuseds were in-charge of the day to day business of the company would meet the requirements of Section 141 of the Act. In the case of S.V. Muzumdar vs. Gujarat State Fertilizer Co. Ltd. AIR 2005 SC 2436 , the Apex Court has held that complaint could not be quashed only on the ground that there was no material to show that at the time of offence, the alleged accuseds were in-charge of the affairs of the company. 9. A perusal of the complaint shows that the accused, Sri. G. Hari Narayanan is the Managing Director of M/s Sharvani Enterprises Pvt. Ltd. and it has been stated in the complaint that he purchased the goods from the complaint and issued the cheque in lieu thereof, which was dishonoured. Therefore, the contention of learned counsel for the applicant relying upon the judgments in the case of S.M.S. Pharmaceuticals Ltd. (supra), Aneeta Hada (supra), Yogendra Kumar Khullar @ Bitto (supra), cannot be accepted. 10. The judgments relied upon by the learned counsel for the opposite party no. 2 are applicable to the facts of the case and, therefore, in view of the fact that there are averments in the complaint that the Managing Director of the accused company issued the cheque towards cost of goods purchased for the company, the orders summoning him for trial are in accordance with law and call for no interference. 11. In view of the above, this application fails and is, accordingly, dismissed. The court below is directed to conclude the trial within the period of six months. Office is directed to communicate the order to the court below within a week.