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2019 DIGILAW 960 (ALL)

Nitin Bhatia v. State of U. P.

2019-04-16

MOHD FAIZ ALAM KHAN

body2019
JUDGMENT : MOHD. FAIZ ALAM KHAN, J. 1. Heard learned counsel for the petitioner and Shri S.N. Tilhari, learned A.G.A. for the State. 2. The present petition under Article 227 of the Constitution of India has been filed to set-aside the impugned summoning order dated 17.05.2017 passed by Additional Court No.10, Lucknow/Opposite Party No.3, judgment and order dated 30.05.2018 passed by Opposite party No.2 as well as the Complaint No. 4187 of 2016 "Rahul Gupta and Another Vs. Director Rohtas Projects Ltd. and Another", pending in the Court of Additional Court No. 10/Opposite Party No.3. 3. Learned counsel for the petitioner submits that, the Court below have failed to appreciate the contention of the petitioner, pertaining to the fact that, the cheque has been issued on behalf of a company and since the cheque has been issued for a company, keeping in view the various pronouncements of the Hon'ble Supreme Court and this High Court, the company is a necessary party in the complaint made U/s 138 Negotiable Instruments Act and if the company has not been arrayed as a party in the complaint, the complaint is not maintainable. 4. He further submits that, the Courts below have not appreciated this point and the trial Court has summoned the applicant, under Section 138 of Negotiable Instrument Act and the Revisional Court has also rejected Revision preferred by the applicant. He submits that, in absence of the company as a party in this proceedings, on whose behalf the cheque has been issued, the whole proceedings including the summoning order dated 17.05.2017 and proceeding of the complaint, pending before the Court below, pertaining to Section 138 of Negotiable Instrument Act are illegal and the same are liable to be quashed. 5. Learned counsel for the petitioner in support of his argument placed reliance on following Case Laws:- "Aneeeta Hada Vs. Godfather travels and tours private ltd., (2012) 5 SCC 661 and N. Harihara Krishnan Vs. J. Thomas,2017 4 CCSC 2120 (SC) ". 6. 5. Learned counsel for the petitioner in support of his argument placed reliance on following Case Laws:- "Aneeeta Hada Vs. Godfather travels and tours private ltd., (2012) 5 SCC 661 and N. Harihara Krishnan Vs. J. Thomas,2017 4 CCSC 2120 (SC) ". 6. Learned A.G.A., however, opposes the contention of learned counsel for the petitioner on the ground that, even if the company on whose behalf, the cheque has been issued and dishonoured has not been made a party, it may not amount to any illegality, as the same can be cured and the company on whose behalf, the cheques have been issued can specifically be impleaded and, therefore, there is no substance in the arguments of learned counsel for the petitioner. 7. Learned A.G.A. relied on "Usher Agro Ltd., Manoj Pathak Vs. State of U.P, and Another, (2018) 8 ADJ 336 ". 8. I have heard learned counsel for the parties and have perused the record. 9. The only argument of learned counsel for the petitioner is that, since in the complaint filed under Section 138 of the Negotiable Instrument Act, the Company namely Rohtas Projects Ltd. has not been made a party, the summoning of Directors of the Company by the Court below is abuse of the process of Law, and the complaint is itself not maintainable and, therefore, the proceeding pending before the Court below be quashed, as they are absolutely illegal. I have considered the Case Laws cited by the parties. 10. Hon'ble learned Single Judge of this Court in "Usher Agro Ltd., Manoj Pathak Vs. State of U.P. and Another, (2018) LawSuit(All) 2822" relied on by the learned A.G.A. has considered the "Aneeta Hada Vs. Godfather Travels and Tours Private Ltd. (supra) and N. Harihara Krishnan's case (supra)" and keeping in view the law laid down by Madhya Pradesh High Court in case of "Manish Kalani and Anr. Vs. Housing and Development Corporation Ltd. (HUDCO) Misc. Crl. No. 16285 of 2016", decided on 30.01.2018 formulated following 4 questions for adjudications: "(i) Whether in a complaint filed under Section 138 N.I. Act in respect of an offence committed by a company the company is a necessary and proper party, in view of Section 141 of the N.I. Act or not. (ii) Whether the failure on the part of the complainant to implead the company as an accused/opposite party in the complaint is fatal and incurable. (ii) Whether the failure on the part of the complainant to implead the company as an accused/opposite party in the complaint is fatal and incurable. (iii) Whether in the absence of any specific provision in the N.I. Act or in the Code of Criminal Procedure regarding impleadment, the Court can summon the additional accused or not. (iv) Whether the summoning of a non applicant as an accused can be done only after the Court passing the summoning order, has itself recorded the evidence in the case. " 11. Learned Single Judge after considering many pros and cons of the matter as well as the above mentioned Case Laws propounded by the Hon'ble Supreme Court has answered the first question in Para No.32 of the judgment as under: "Thus the complaint filed under Section 138 N.I. Act in respect of an offence committed by a company i.e. where the cheque is issued on behalf of the company would not be maintainable if the company on whose behalf of the cheque has been issued is not impleaded as an accused/opposite party in the complaint." 12. As far as, the second question, pertaining to the fact that, as to whether the failure on the part of the complainant to implead the company as an accused in the complaint is fatal and incurable, learned Single Judge held that, a complete answer to this question has been given in the case of "Manish Kalani and Anr. Vs. Housing and Development Corporation Ltd. (HUDCO) Misc. Crl. No. 16285 of 2016, decided by Hon'ble M.P. High Court on 30.01.2018, and answered this question as under: "Thus, upon perusal of the aforesaid paragraphs, there is no iota of doubt that in a case under Section 138 of the N.I. Act, if the company on whose behalf of the disputed cheque was issued was not impleaded, can be subsequently impleaded. However, the only rider to the aforesaid proposition is that the material particulars in respect of the same should be present in the complaint filed under Section 138 of the N.I. Act or else the same being barred by limitation cannot be permitted at a belated stage." 13. The question No.3 and 4 formulated by the learned Single Judge is not relevant for the purpose of disposal of this petition. The question No.3 and 4 formulated by the learned Single Judge is not relevant for the purpose of disposal of this petition. It is thus clear from above discussion that, non-arraying the company as an accused in the complaint would not itself render the complaint illegal and it is simply an irregularity and the company can be regularized by impleading the company as the party in the complaint. However, the only requirement is that, the material particulars and allegations, with regard to the offence committed by the company should be implicit in the complaint itself, therefore, I am fully in agreement with the conclusion drawn by the learned Single Judge of this Court in above mentioned Usher Agro Ltd.'s case (supra). 14. Coming to the facts of the present case, perusal of complaint would reveal that, the complainant in complaint has specifically and categorically mentioned that, the Rohtas Projects Ltd. (the accused company) in the year 2013 contemplated to develop a colony at Village Kasimpur Biruha at Lucknow-Sultanpur Road, and invited applications. 15. It is further stated in the complaint that, complainants approach the accused company and jointly entered into the plot buyer agreement dated 20.08.2013, and in that agreement, the accused company has been referred as the first party, while complainant was the second party. 16. It is further stated that, in Clause 14 of the said agreement, it is clearly stipulated that it is the right of the buyers (complainants in the instant matter) either to surrender their right for allotment of plot and seek refund or to opt for allotment of plots having total area of 150 square yards, and in this case complainants opted to surrender their rights for allotment and buy back their subscriptions made by them to the aforesaid project of the accused company, and also made an application dated 05.03.2016. 17. It is further alleged that, the accused company accepted/entertained the applications and also communicated to them vide letter dated 28.05.2016 that towards discharging its liability against the rights of complainants, the accused company has drawn eight post-dated cheques of equal amount to the tune of Rs.1,78,125/- each in favour of complainants, the details of which, has been given in Para No. 6 of the complaint. Therefore, when specific allegations have been made against the company, in view of the above mentioned decision of Ushar Agro Ltd. (supra), it is merely an irregularity which can be corrected subsequently, as there are specific allegations against the company in the complaint. The omission to implead the company as an accused is not such an infirmity or illegality in the considered opinion of this Court, which could not be allowed to be cured, as all material particulars for implicating the company as an accused are available in the complaint dated 22.11.2016. Therefore, I am of the considered opinion that, no illegality has been committed by the Court below in passing the summoning order dated 17.05.2017 as well as by the Revisional Court in dismissing the revision filed by the petitioner. 18. Resultantly, I do not find any force in the petition filed by the petitioner, therefore, the petition is dismissed.