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2019 Supreme(Ori) 450
IN THE HIGH COURT OF ORISSA, CUTTACK
Dr. A.K. Mishra, J.
M/s. Alfa Automation Pvt. Ltd & Anr. - Appellants
Versus
M/s. Deepenterprises - Respondent
CRLMC/5015 of 2015
Decided On : 13-03-2019
The court emphasized that the quashing of the previous cognizance order did not preclude the filing of a second complaint, and the issues related to notice issuance and the liability of the company's directors should be addressed at the trial stage.
Headnote:
N.I. Act - Quashing of Cognizance Order - 138 - 482 Cr.P.C. - 85 of 2012, 312 of 2015 - The court discussed the provisions of the Negotiable Instrument Act, 1881, specifically section 138, and the implications of quashing the cognizance order. It also considered the legal principles related to double jeopardy, delay condonation, and notice issuance to the company. The court's decision was influenced by the interpretation of vicarious liability under section 141 of the N.I. Act and the maintainability of a second complaint on the same facts.
Fact of the Case:
The petitioners sought to quash the order taking cognizance under section 138 of the Negotiable Instrument Act, 1881, arguing double jeopardy, delay condonation, and lack of notice to the company.
Finding of the Court:
The court found that the quashing of the previous cognizance order did not bar the second complaint, and the delay condonation order had attained finality. It also noted that the issues related to notice issuance and the liability of the company's directors should be considered at the trial stage.
Issues: Double jeopardy, delay condonation, notice issuance to the company, and liability of the company's directors.
Ratio Decidendi: The quashing of the previous cognizance order did not bar the second complaint, and the delay condonation order had attained finality. The issues related to notice issuance and the liability of the company's directors should be considered at the trial stage.
Final Decision: The court dismissed the petition to quash the cognizance order, finding no illegality or infirmity in the order.
JUDGMENT
A.K. Mishra, J. - Heard Mr. G. N. Mishra, learned counsel for the petitioner and Mr. Ashutosh Mishra, learned counsel for opposite party no.1.
2. In this Lis under section 482 Cr.P.C., 1973 prayer is made to quash the order dated 06.08.2015 passed by learned S.D.J.M., Panposh in 1CC Case No.312 of 2015 taking cognizance under section 138 of Negotiable Instrument Act, 1881 against the present petitioners and proforma opposite parties.
3. The case of the petitioners is that on the allegation that the cheque issued by the present petitioners and proforma opposite parties which was dishonoured, the opposite party, as complainant, had filed 1CC Case No.85 of 2012 in the court of S.D.J.M., Angul in which cognizance was taken under section 138 of the N.I. Act vide order dated 23.7.2012 and processes were issued against the present petitioner no.2 - Mr. Pradyot Pattnaik as Director of the Company. The said cognizance order was challenged before this court by the accused petitioner in CRLMC No.239 of 2013 and this court, vide order dated 11.03.2015 quashed the said order taking cognizance as the company was not arraigned as an accused there. Thereafter the opposite party, as complainant, filed 1CC Case No.312 of 2015 in the court of S.D.J.M., Panposh, Rourkela against the Company and other Directors including Director Pradyot Pattnaik, against whom complaint was filed at Angul but quashed by this court. The Company and Directors are petitioners and proforma opposite parties in this case. CRLMC No.5015 of 2015.
4. Learned S.D.J.M., Panposh condoned the delay in filing the complaint vide order dated 12.5.2015. Thereafter, on 06.08.2015 took cognizance of the offence under section 138 of the N.I. Act and issued processes against 5 accused persons including the company.
5. Learned counsel for the petitioners urged the following points to quash the said cognizance order, such as;
(i) Once the cognizance on the self same matter taken in 1CC Case No.85 of 2012 has been quashed by this court in CRLMC No.239 of 2013 on 11.3.2015, the petitioners have no cause of action to file second complaint and continuance of that proceeding would amount to double jeopardy.
(ii) Delay of almost four years in presenting the complaint has been condoned without giving notice to the accused - petitioners; and
(iii) No notice on dishonor of cheque was given to the Company even though notice was issued to present petitioner no.2, a Director only.
6. In support of his contention, learned counsel for the petitioners relied upon the following decisions:-
1. Ramakanta Sahoo and Others vs. State of Orissa and another reported in (2016) 2 OLR 959.
2. Gold Quest International Private Limited vs. The State of Tamil Nadu & Ors. reported in (2014) 59 OCR (SC) 593 .
7. Learned counsel for the complainant - opposite party, per contra, submits that when the order dated 23.7.2012 in 1CC No.85 of 2012 of learned S.D.J.M., Angul taking cognizance was quashed as the company was not arraigned as an accused, as per decision of Hon'ble Apex Court in the case of Aneeta Hada vs. M/s. Godfather Travels & Tours Pvt. Ltd. reported in, AIR 2012 Supreme Court 2795 , the accused persons cannot be said to have acquitted after trial to attract double jeopardy as provided under section 300 Cr.P.C., 1973
8. He further submits that the second complaint even on same facts is maintainable as per decision of Hon'ble Apex Court in the case of Om Prakash Singh vs. The State of Bihar & Ors. (passed in Criminal Appeal No.857 of 2018, arising from SLP(Crl.) No.387 of 2018).
9. With regards to delay condonation, it is submitted that the said order condoning delay is not challenged in this case, as such has attained finality and there is no provision to give notice to the other side because the court is to satisfy on sufficient cause.
10. On the last plank, it is submitted that notice to the Company has been issued and they had replied through their Director and the plea of non-issuance of statutor
