For maintaining a prosecution under Section 138 of the Negotiable Instruments Act, arraigning of the company as an accused is imperative. The person in charge of the company cannot be held liable if the company is not prosecuted. The issuance of a cheque by an authorized signatory for the company can be determined from the document itself.

JUDGMENT :

1. Heard Shri Ganesh Shankar Srivastava, learned counsel for the applicant, Sri Pankaj Saxena, learned A.G.A. for the State and perused the material on record.

2. This petition under section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.) has been filed with prayer for quashing of the summoning order dated 17.8.2015 passed by the Additional Chief Judicial, Magistrate, Court No. 10, Varanasi in Complaint Case No. 1153 of 2015 (Manoj Kumar vs Sanjay Singh) under Section 138 of the Negotiable Instruments (N.I.) Act, Police Station, Sigra, District-Varanasi. The applicant has also challenged the revisional order dated 28.10.2015 passed by the Additional Sessions Judge, Court No. 4, Varanasi in Criminal Revision No. 317 of 2015 (Sanjay Singh vs State of U.P. and others) as also the entire proceedings of the aforesaid complaint case.

3. By order dated 15.2.2016 a notice was issued to Opposite Party No.2/complainant and as per the office report dated 17.8.2016 notice issued to Opposite Party No. 2 has been served. However, no one has put in appearance for the Opposite Party No. 2.

4. The facts of the case as stated by the learned counsel for the applicant are that the applicant is the Director of Udit Infraheights Pvt. Ltd., a company incorporated under the Companies Act, 1956. The complainant/opposite party No.2, an employee in the railways, by giving assurance of contract of road construction from his superior officers in favour of the applicant’s company, situated at Lahartara Railway Colony, Varanasi obtained post dated cheque of rupees five lacs in terms of security money. The complainant assured the applicant that when the applicant earns profits of the said contract work and presents gifts to the complainant, the complainant would return the post dated cheque. However, it is the case of the applicant that without any prior notice to the company, the complainant presented the cheque in the bank which was dishonoured due to non availability of funds. The legal notice dated 16. 6.2015 was not received to the applicant, but the second notice dated 4.7.2015 was served.

5. The opposite party No.2 complainant filed complaint registered as Complaint Case No. 1153 of 2015 (Manoj Kumar vs. Sanjay Singh) under section 138 N.I. Act, Police Station, Sigra, District-Varanasi, on the averments, inter alia, that the complainant had advanced rupees 5,50,000/-to the applicant for purchase of land as the applicant was engaged in the business of property dealing but the land was not transferred. The complainant made repeated demands for return of money and consequently the applicant gave a cheque of rupees 5,00,000/-dated 30.4.2015 to the complainant, which, on presentation in bank was dishonored. The complainant served the applicant with legal notice within the stipulated period but as the amount under cheque was not paid, the complaint was filed.

6. The Additional Chief Judicial Magistrate, Court No.10 Varanasi, on consideration of the statement of the complainant recorded under Section 200 Cr.P.C. and the material placed before him passed the summoning order dated 17.8.2015. This order was challenged by the applicant in Criminal Revision No. 317 of 2015, but the same was rejected by the order dated 2.9.2015 passed by the Additional Sessions Judge, Court No.4, Varanasi.

7. The learned counsel for the applicant has submitted that the orders under challenge suffer from illegality and amount to abuse of the process of the court. His submission is that the cheque in question was issued by the company. The applicant had signed the cheque in the capacity of the authorised signatory of the company. He had not issued the cheque nor signed in his personal capacity, but, the company was not made party accused in the complaint. The applicant, Director of the company, could not be held liable for the alleged offence as there was no prosecution of the company. Consequently, no prosecution of the applicant could be launched and summons could not be