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IN THE HIGH COURT OF ALLAHABAD
ANIL KUMAR SRIVASTAVA-II, J.
SMT. VIMLA DEVI - Appellant
Versus
STATE OF UTTAR PRADESH - Respondent
Criminal Petition No. 234 of 2008
Decided on : 09-02-2017
CRIMINAL - Negotiable Instruments Act, 1881 - Section 138 - Dishonour of cheque for insufficiency, etc., of funds in the account - Section 141 - Offences by companies - Complaint under Section 138 Negotiable Instruments Act - Averments in a complaint under Section 141 - Compliance of the provisions of Section 141 Negotiable Instruments Act - Power of the High Court under Section 482 Cr.P.C., 1973 - Exercise of power under Section 482 Cr.P.C., 1973 - Guidelines for exercise of the power by the High Court under Section 482 Cr.P.C., 1973.
Fact of the Case:
A complaint under Section 138 Negotiable Instruments Act was filed by the opposite party No. 2 Indo Gulf Fertilizers Limited, a public limited company, through its authorized representative Shri K.K. Jindal, Manager (Marketing Accounts) of the company. It is alleged that the accused No. 2 to 4, i.e., Vivek Kumar (non-petitioner), Vimla Devi (petitioner No. 1), Munni Devi (petitioner No. 2) are carrying on business in partnership under the firm name and style M/s. Vinod Kumar and Company (accused No. 1) having its registered office at Farrukhabad. On the request of the accused persons opposite party No. 2 appointed accused No. 2 to 4 as wholesale dealer in their partnership firm M/s. Vinod Kumar and company for the sale of Fertilizers under the brand name of SHAKTIMAN for the Tehsil Kannauj District Farrukhabad. Accused No. 2 to 4 through their firm M/s Vinod Kumar and Company requested the opposite party No. 2 to supply the stock of fertilizers measuring about 1819.450 metric tons amounting to Rs. 90,10,374/- and after adjusting all the payments and other expenses an amount of Rs. 5,35,621.67 became overdue upon the firm. Accused No. 2 to 4 through their firm accused No. 1 issued a cheque No. 929974 from Account No. 2009 in Bank of India, Farrukhabad Branch for an amount of Rs. 535621.16. Cheque was duly presented by the complainant opposite party No. 2 on 12.8.2005 with its banker State Bank of India, Jawahar Bhawan Branch, Lucknow which was dishonoured by the Bank vide memo dated 18.8.2005 on the ground 'exceed arrangement'. Cheque was returned with memo on 25.8.2005. A notice dated 8.9.2005 was sent to the accused which was duly served upon them on or about 20.9.2005 but they neither replied the notice nor complied the notice nor made any payment, rather sent a reply dated 22.9.2005 through counsel. Thereafter a complaint under Section 138 Negotiable Instrument Act was filed by the complainant.
Finding of the Court:
The complaint, so far as it relates to the petitioners, as well as the cognizance order is bad in law and is liable to be quashed.
Issues: Whether the complaint under Section 138 Negotiable Instruments Act is maintainable?
Ratio Decidendi: 1. A complaint under Section 138 Negotiable Instruments Act was filed by the opposite party No. 2 Indo Gulf Fertilizers Limited, a public limited company, through its authorized representative Shri K.K. Jindal, Manager (Marketing Accounts) of the company. 2. It is alleged that the accused No. 2 to 4, i.e., Vivek Kumar (non-petitioner), Vimla Devi (petitioner No. 1), Munni Devi (petitioner No. 2) are carrying on business in partnership under the firm name and style M/s. Vinod Kumar and Company (accused No. 1) having its registered office at Farrukhabad. 3. On the request of the accused persons opposite party No. 2 appointed accused No. 2 to 4 as wholesale dealer in their partnership firm M/s. Vinod Kumar and company for the sale of Fertilizers under the brand name of SHAKTIMAN for the Tehsil Kannauj District Farrukhabad. 4. Accused No. 2 to 4 through their firm M/s Vinod Kumar and Company requested the opposite party No. 2 to supply the stock of fertilizers measuring about 1819.450 metric tons amounting to Rs. 90,10,374/- and after adjusting all the payments and other expenses an amount of Rs. 5,35,621.67 became overdue upon the firm. 5. Accused No. 2 to 4 through their firm accused No. 1 issued a cheque No. 929974 from Account No. 2009 in Bank of India, Farrukhabad Branch for an amount of Rs. 535621.16. 6. Cheque was duly presented by the complainant opposite party No. 2 on 12.8.2005 with its banker State Bank of India, Jawahar Bhawan Branch, Lucknow which was dishonoured by the Bank vide memo dated 18.8.2005 on the ground 'exceed arrangement'. 7. Cheque was returned with memo on 25.8.2005. 8. A notice dated 8.9.2005 was sent to the accused which was duly served upon them on or about 20.9.2005 but they neither replied the notice nor complied the notice nor made any payment, rather sent a reply dated 22.9.2005 through counsel. 9. Thereafter a complaint under Section 138 Negotiable Instrument Act was filed by the complainant.
Final Decision: Petition allowed. Complaint case No. 866 of 2005 pending before Special Judicial Magistrate (Pollution) CBI, Lucknow Indo Gulf Fertilizers Limited v. M/s Vinod Kumar and Company under Section 138 Negotiable Instruments Act, Police Station Hazratganj is quashed to the extent it relates to the petitioners Smt. Vimla Devi and Smt. Munni Devi. Summoning order dated 15.12.2005, so far as it relates to the petitioner Vimla Devi, Munni Devi is also quashed. Complaint shall proceed for rest of the accused in accordance with law.
ANIL KUMAR SRIVASTAVA-II, J.
1. Heard Shri Anurag Shukla learned counsel for the petitioner, Shri N.K. Seth, Senior Advocate assisted by Shri Sachin Garg.
2. Petitioners have filed this petition under Section 482 Cr.P.C, 1973 for quashing of the proceedings of the Complaint Case No. 866 of 2005, Indo Gulf Fertilizers Limited v. M/s Vinod Kumar and Company under section 138 of Negotiable Instruments Act pending before court of Special Judicial Magistrate (Pollution) Lucknow and also the orders dated 23.11.2007 and 15.12.2005 as contained in Annexures 9 and 7 of the petition.
3. A complaint under Section 138 Negotiable Instruments Act was filed by the opposite party No. 2 Indo Gulf Fertilizers Limited, a public limited company, through its authorized representative Shri K.K. Jindal, Manager (Marketing Accounts) of the company. It is alleged that the accused No. 2 to 4, i.e., Vivek Kumar (non-petitioner), Vimla Devi (petitioner No. 1), Munni Devi (petitioner No. 2) are carrying on business in partnership under the firm name and style M/s. Vinod Kumar and Company (accused No. 1) having its registered office at Farrukhabad. On the request of the accused persons opposite party No. 2 appointed accused No. 2 to 4 as wholesale dealer in their partnership firm M/s. Vinod Kumar and company for the sale of Fertilizers under the brand name of SHAKTIMAN for the Tehsil Kannauj District Farrukhabad. Accused No. 2 to 4 through their firm M/s Vinod Kumar and Company requested the opposite party No. 2 to supply the stock of fertilizers measuring about 1819.450 metric tons amounting to Rs. 90,10,374/- and after adjusting all the payments and other expenses an amount of Rs. 5,35,621.67 became overdue upon the firm. Accused No. 2 to 4 through their firm accused No. 1 issued a cheque No. 929974 from Account No. 2009 in Bank of India, Farrukhabad Branch for an amount of Rs. 535621.16. Cheque was duly presented by the complainant opposite party No. 2 on 12.8.2005 with its banker State Bank of India, Jawahar Bhawan Branch, Lucknow which was dishonoured by the Bank vide memo dated 18.8.2005 on the ground 'exceed arrangement'. Cheque was returned with memo on 25.8.2005. A notice dated 8.9.2005 was sent to the accused which was duly served upon them on or about 20.9.2005 but they neither replied the notice nor complied the notice nor made any payment, rather sent a reply dated 22.9.2005 through counsel. Thereafter a complaint under Section 138 Negotiable Instrument Act was filed by the complainant.
4. In support of the complaint affidavit on behalf of the complainant Shri K.K. Jindal was filed under Section 200 Cr.P.C., 1973 After going through the record the learned Magistrate passed the impugned order dated 15.12.2005 summoning M/s Vinod Kumar and company, Vivek Kumar, Vimla Devi and Munni Devi under Section 138 Negotiable Instruments Act.
5. An application under Section 245(2) was moved by the petitioners which was rejected by the learned Magistrate on the ground that since they have not put in their appearance and are not granted bail, hence, application was rejected. Feeling aggrieved, petitioners Vimla Devi and Munni Devi have preferred the petition on 21.01.2008.
6. At the very outset it would be relevant to mention here that another petition No. 1603/07 was filed by Vinod Kumar as a partner of M/s Vinod Kumar and Company, Vivek Kumar, Vimla Devi and Munni Devi wherein following prayer was made:-
"Wherefore, it is humbly prayed that this Hon'ble Court may graciously be pleased to quash the entire judicial proceedings in the nature of certiorari, under Section 138 of the Negotiable Instrument Act pending before the Special Court Judicial Magistrate (Pollution) CBI, Lucknow Case No. 866/05 wherein summoning the accused and also issuing the bailable warrant against the petitioners in the order dated 10.5.2007 an annexed herewith as Annexure No. 1 to this petition.
It is further prayed that this Hon'ble Court may graciously be pleased to permit the p
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