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ALLAHABAD HIGH COURT
Vishnu Chandra Gupta, J.
Achche Lal Yadav —Applicant
versus
The State of U.P & Anr. —Opp.Parties
Case U/S 482 of 407 No.6022 of 2013
Decided on 8.9.2014
(ii) Negotiable Instruments Act, 1881 — Section 138 — Cause of action — In regard to complaint under S. 135 of NI Act depend on basis of document — If complaint filed involving person residing outside jurisdiction of court — It shall not be deemed to have been falsely implicated like any other case — In which evidence produced oral — Magistrate after going through documentary evidence produced during inquiry took decision to summon accused — It cannot be said that this case based on false allegation. [Para 7 (2)]
(iii) Negotiable Instruments Act, 1881 — Section 138 — Complainant corporate body — Opposite party Director of M/s Cropaid Marketing Pvt. Ltd. — Company juristic person — Director employer of company but if authorized by resolution of Board of Directors to initiate proceedings — It will be decision of company and not of Directors — No authorization to file complaint on behalf of company available — This defect curable and same may be cured — If authorization filed during proceedings before trial court. [Para 7 (3)]
(iv) Negotiable Instruments Act, 1881 — Section 9 — Director of company — Represents company and holds property on behalf of company — He cannot be categorized as person not competent to hold cheque on behalf of company — He shall be holder in due course of cheque in question within meaning of S. 9 of NI Act. [Para 7 (4)]
(v) Negotiable Instruments Act, 1881 — Section 141 — Complaint filed against proprietor of company — Who owner of firm and business — S. 141 will not attack in this case — Impleadment of firm not at all necessary — To establish non-existence of any liability of payment — Burden lies on shoulder of accused has to discharge in view of S. 139 of NI Act during course of proceeding — Existence of mala fides of opposite party in launching prosecution not brought on record. [Para 7 (5)]
Result: Petition dismissed
Vishnu Chandra Gupta, J.—Heard Shri Jagrit Sharma, learned counsel for the petitioner, Shri Sudeep Kumar, learned counsel for the complainant and the learned AGA.
2. By means of the present petition under section 482 Code of Criminal Procedure (hereinafter referred to as ‘Cr.P.C.’), the petitioner has prayed for quashing the entire proceeding of Complaint Case No. 1991 of 2012(earlier Complaint Case No.1217 of 2011), Sabyasachi Sikdar Vs. Achche Lal Yadav, under section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as “N.I. Act”) pending in the court of Additional Chief Judicial Magistrate-IV, Lucknow and also the orders dated 9.8.2012 and 2.11.2013 passed by the Additional Chief Judicial Magistrate-I, Court No. 25, Lucknow, whereby the petitioner has been summoned to face trial and issue of process under Section 138 of the N.I. Act., P.S. Vikas Nagar, District Lucknow.
3. Facts relevant for deciding this petition are that opposite party no. 2 Sabyasachi Sikdar being Director of M/s Cropaid Marketing Private Ltd. filed aforesaid complaint case under Section 138 of N.I. Act against petitioner Achche Lal Yadav, who is Proprietor of firm “M/s Natraj Fertilizer” alleging therein that opposite party no.2 issued a cheque amounting to Rs. 1,62,838/- on 9.5.2011 having cheque no.041157 of Union Bank of India, Chandawak, District Jaunpur in favour of the company “Cropaid Marketing Pvt. Ltd” towards full and final payment of the outstanding amount along with interest. The cheque in question was presented by opposite party no.2 for clearing in the State Bank of India, Vikas Nagar, Lucknow, but the same was dis-honoured by the Union Bank of India, Chandawak, Jaunpur on account of insufficient funds. The communication has been made by the State Bank of India, Vikas Nagar, Lucknow vide its memo letter dated 10.5.2011. A registered legal notice was issued to the petitioner by the opposite party no. 2 through his counsel on 6.6.2011 demanding the amount under the cheque within fifteen days. Telegram was also sent on 7.6.2011 to the petitioner demanding the payment under the cheque in question. But inspite of it, the amount of cheque has not been paid by the petitioner to the opposite party no.2. Consequently, the complainant has filed a complaint under section 138 read with section 142 of the N.I. Act on 23.7.2013 before the learned Additional Chief Judicial Magistrate-III, Court No 27, Lucknow along with an affidavit annexing therewith relevant documents.
4. The learned Magistrate after considering the allegations of complaint, affidavit and documents filed passed the impugned order summoning the accused applicant to face the trial under section 138 of NI Act fixing the date of appearance on 24.9.2011. Aggrieved by the aforesaid order, the petitioner has filed the present petition on the following grounds:-
I). That the impugned orders are not legally sustainable due to non compliance of amended provisions of section 202 Cr.P.C. as held in the judgment of Apex Court rendered in Petition (s) for Special Leave to Appeal (Crl.) No. (s) 9098 of 2012, National Bank of Oman Vs. Barakara Adbul Aziz and another.
II). That cheque in question has been issued in the name of Company “Cropaid Marketing Pvt Ltd.”. The complaint has been signed and presented by opposite party no. 2, Sabyasachi Sikdar, who is neither payee or holder in due course of cheque nor is a person empowered by a resolution of Board of Directors to file complaint.
III). That complaint filed by the opposite party no. 2 is barred by sections 9, 141 and 142 (a) N.I. Act as held in the judgment of Apex Court delivered in Criminal Appeal No.838 of 2008 Aneeta Hada Vs. M/s Godfather Travels and Tours Pvt. Ltd., with Criminal Appeal No.842 of 2008, Anil Hada Vs. M/s Godfather Travels and Tours Pvt. Ltd., decided on 27.4.2012.
IV). That opposite party no.2 has not filed any receipt of registered post of the postal department along with the complaint or the list
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