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PATNA HIGH COURT
Ashwani Kumar Singh, J.
Hemant Kumar Das and Anr. —Petitioners
versus
State of Bihar and Anr. —Opp. Parties
Criminal Miscellaneous No.905 of 2018
Decided on 21.8.2018
For the Petitioners:Mr. Nikhil Kumar Agrawal, Ms. Aditi Hansaria and Ms. Deepika Sharma, Advocates
For the Opp. Parties: Mr. Jharkhandi Upadhyay, APP
IMPORTANT POINT
When a cheque which is drawn by company, is dishonoured, company will have to be made a party to proceedings under Section 138 of NI Act and failure to do so will vitiate prosecution.
Headnote:Negotiable Instruments Act, 1881—Sections 138 and 141—Indian Penal Code, 1860—Sections 406 and 420—Criminal Procedure Code, 1973—Sections 239 and 482—Dishonour of cheque—Rejection of application seeking discharge from criminal case—Simply because company withheld payment either to milk suppliers or it failed to make payment due to milk van and salary to informant, same would not constitute offence punishable under Section 406 of IPC—Even if entire allegations are believed to be true at their face value, ingredients of offences punishable under Sections 406 and 420 IPC are not attracted in present case—IPC does not provide for vicarious liability upon Directors of company for any offences alleged to be committed by a company—Section 138 of NI Act mandates for filing a complaint case after issuance of a statutory notice—In present case, no cause of action had arisen as no statutory notice was served upon petitioners or company by aggrieved persons—Informant is not an aggrieved person within meaning of provisions of Section 138 of NI Act—When a cheque which is drawn by company, is dishonoured, company will have to be made a party to proceedings under Section 138 of NI Act and failure to do so will vitiate prosecution—No cognizance could have been taken by Magistrate under Section 138 of NI Act on the basis of FIR instituted in police station which culminated in filing of charge-sheet under Sections 406 and 420 of IPC and Section 138 of NI Act—Impugned order rejecting discharge petition set aside and criminal proceeding quashed.
(Paras 24, 44, 45, 52, 53, 54, 58, 63,
68 to 71)
Result: Application allowed.
Ashwani Kumar Singh, J.—Heard Mr. Nikhil Kumar Agrawal, learned advocate for the petitioners and Mr. Jharkhandi Upadhyay, learned Additional Public Prosecutor for the State.
2. This application under Section 482 of the Code of Criminal Procedure (for short CrPC) has been filed by the petitioners for quashing the order dated 25.08.2017 passed by the learned Judicial Magistrate-1st Class, Patna in Trial No.2413 of 2013 in connection with Patliputra P.S. Case No.160 of 2012 whereby the petition filed by the petitioners under Section 239 of the Cr.P.C. for discharge from the case has been rejected.
3. First Information Report (for short FIR) of Patliputra P.S. Case No.160 of 2012 was registered on 19.07.2012 under Sections 406 and 420 of the Indian Penal Code, 1860 (for short IPC) and Section 138 of the Negotiable Instruments Act, 1881 (for short NI Act) on the basis of a written report submitted by one Akhilesh Kumar to the Officer-in-Charge of the Patliputra Police Station on 19.07.2012. The facts stated by the informant in his written report are as under:-
(a) That on 28.07.2009, he was appointed by the petitioner no.1, the Managing Director of the Natural Dairy Pvt. Ltd. as a Supervisor of the company. After his appointment, he collected milk from various villages in Jandaha in the district of Vaishali and the various villages in the district of Samastipur with the help of milk suppliers and supplied the same to the milk collection centre of the company from 28.07.2009 to 03.11.2011 vide vehicles bearing Registration No.BR 06/445 and BR 9D/7368.
(b) That the company did not make appropriate payment of the milk to the milk suppliers and slowly siphoned off huge sums of money, i.e. an amount of Rs. 30,00,000/- due to farmers, Rs. 80,000/- due to milk van, Rs. 55000/- due to him on account of his salary and an amount of Rs.10,000/- due to the labour at the milk van.
(c) That some milk suppliers were paid by cheque, more particularly Cheque No.000365 dated 25.04.2011 for an amount of Rs. 45,000/- to Shashi Bhushan Rai and Cheque No.000366 dated 25.05.2011 for an amount of Rs.45,000/- to Shashi Bhushan Rai. However, both the cheques were dishonoured by the bank.
(d) That a compromise was entered into with certain milk suppliers for payment of their outstanding amount in installments. However, the said amounts were also not paid on time. Subsequently, some milk suppliers were paid through cheques which were called back by the company and the company never issued any other cheque in lieu thereof.
(e) That in the manner specified above, the Directors of the company, i.e. the petitioner nos. 1 and 2 have committed fraud against the informant and others resulting in financial loss to the farmers.
(f) That the company is not making payment of the outstanding amount despite repeated requests and reminders and the milk suppliers have been pressurizing him to ensure that their payment is released by the company.
4. On the basis of the allegations made above, the Officer-in-Charge of the Patliputra Police Station after registering the FIR entrusted investigation of the case to an assistant sub- inspector of police.
5. After completion of investigation, the investigating officer of the case submitted charge-sheet vide Charge-sheet No.19 of 2013 dated 28.02.2013.
6. On perusal of the FIR, the materials collected during investigation and the charge-sheet submitted by the police, the learned Chief Judicial Magistrate, Patna vide order dated 01.04.2013 took cognizance of the offences punishable under Sections 406, 420 of the IPC and Section 138 of the NI Act and summoned the petitioners to face trial and transferred the case to the court of Judicial Magistrate-1st Class, Patna for disposal.
7. On receipt of the record from the court of Chief Judicial Magistrate, the learned Magistrate supplied to the accused the copy of police report and other documents, as provided under Section 207 of the CrPC and, thereafter, fixed the cas
