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IN THE HIGH COURT OF ALLAHABAD
RAM MANOHAR NARAYAN MISHRA, J.
Parmeshwar Srivastava @ Pappi - Revisionist
Versus
State of U.P. and Another - Opposite Parties
Criminal Revision No. 395 of 2023 With Application U/S 482 No. 5071 of 2023
Decided On : 18-10-2023
N.I. Act - Complaint Case - Section 138 N.I. Act - Section 141 N.I. Act, Section 219 Cr.P.C. - Summary of Acts and Sections: The court discussed the provisions of Section 138 N.I. Act, which deals with dishonor of cheques, and Section 141 N.I. Act, which deals with offences by companies and their officers. The court also referred to Section 219 Cr.P.C., which empowers the court to try cases summarily. The interpretation of these provisions influenced the court's decision in maintaining the complaint against the accused.
Fact of the Case:
The complainant filed a complaint under Section 138 N.I. Act, alleging that the accused borrowed a substantial amount of money and issued cheques that were dishonored. The accused moved a discharge application, claiming that the complaint was based on false facts and was not maintainable under the law.
Finding of the Court:
The court found that the complaint was maintainable and dismissed the discharge application, stating that the accused had been summoned based on sufficient evidence and that the evidence had to be recorded during trial.
Issues: The issues included the maintainability of the complaint, the applicability of Section 141 N.I. Act, and the legality of the discharge application in a summons case.
Ratio Decidendi: The court held that the complaint was maintainable, the accused could be proceeded against under Section 138 N.I. Act, and the discharge application was not applicable in a summons case.
Final Decision: The revision was dismissed, and the court upheld the maintainability of the complaint against the accused.
JUDGMENT :
1. Heard Sri Prakash Chandra Srivastava, learned counsel for the revisionist/applicant, learned counsel for the opposite party No.2, learned AGA for the State and perused the material placed on record.
2. Instant criminal revision has been preferred against judgment and order dated 9.1.2023 passed by learned C.J.M. Varanasi in Complaint Case No. 9647 of 2021, under Section 138 N.I. Act, P.S. Rohaniya, District Varanasi, whereby discharge application moved by revisionist/accused has been dismissed and the case was fixed for recording statement of the accused.
3. Factual matrix of the case in brief is that complainant who is respondent no. 2 in present revision filed a complaint before the court of Special C.J.M., Varanasi, under Section 138 N.I. Act which is registered as criminal case no. 9647 of 2021 wherein he has stated that complainant is having huge chunk of plots in Mauza Badi Khajuri Varanasi. The accused Parmeshwar Srivastava came into conact with him and posed himself as Director/Office bearer of Shine City Infra Project Limited and stated that he was purchasing plots for said Company and also promised to pay dividends by borrowing money in personal capacity from people. Complainant’s wife Sadhna Singh sold her plot to Shine City Infra Project Limited in the year 2014 and received its sale proceeds. Accused visited the complainant and asked for paying him Rs. 4 crore to meet out the financial difficulties of the said Company. The complainant relying on representations of the accused who was his old acquaintance, lent him Rs.3,92,00,000/- in presence of witnessed which was collected by him from different sources and he assured him to refund the said amount within six months. Wife of the complainant also paid Rs.2,00,00,000/- to the accused for purchasing some plots from said Company on reposing trust on representations of the accused. Accused gave 31 cheques to Sadhna Singh for her two crore rupees but got these cheques back from her and gave an allurement of making money double, thus accused took total Rs.5,92,00,000/- from the complainant and his wife which he failed to repay. He had not given any plot to them lying with said Company. At one point of time, he gave a cheque of Rs.3,24,00,000/- to the complainant on 10.5.2018 but subsequently he asked him to not present the said cheque for encashment but ultimately he did not pay the amount of said cheque. The complainant gave six cheques bearing dates 20.4.2021, 25.4.2021 of different amounts to discharge the debts of the complainant and his wife and assured him to pay remaining Rs.2,00,00,000/- soon. The complainant produced said cheques before his bank Union Bank of India, Raja Talab, Rohaniya, Varanasi, however, three cheques were dishonoured with remarks “payment stopped by drawer” on 13.5.2021. Three cheques were dishonoured with remarks “payment stopped by drawer and funds insufficient”, were dishnoured on 11.5.2021 and thus, he could not get the payment of said six cheques. After receiving the cheques back with said remarks of Bank. The complainant gave a registered notice to the accused through his counsel and when accused failed to pay the amount of said cheques, he filed present complaint on 18.6.2021.
4. Learned Special C.J.M. examined the accused/revisionist by order dated 14.9.2021 under Section 138 N.I. Act for trial. Accused assailed the said summoning order before this Court by moving an application under Section 482 Cr.P.C. No. 14311 of 2022 which is said to be pending before this Court.
5. Accused revisionist moved an application for discharge on 9.9.2022 with prayer that the said complaint was based on false, concocted and baseless facts and is not maintainable in the eye of law. The revisionist was informed by the office bearer or Director of said Company Shine City Infra Project Limited. He would neither purchase plots nor he had assured any dividend to the complainant, in fact four signed cheques of the accused got missing in the city of Va
AI
The main legal point established in the judgment is the interpretation and application of the provisions of Section 138 N.I. Act, Section 141 N.I. Act, and Section 219 Cr.P.C. in maintaining the comp....
The court affirmed that a cheque issued in an individual's capacity does not require the company to be impleaded as an accused, and the complaint was not time-barred.
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 ....
Sufficient averments in a complaint against a director fulfill requirements of Section 141 of the NI Act for vicarious liability. Failure to respond to statutory notices under Section 138 infers liab....
The case established the importance of specific allegations and the requirement to arraign the company as an accused in matters of vicarious liability under Section 138 of the Negotiable Instruments ....
Specific averments are necessary to establish the liability of a Director under Section 141 of the Negotiable Instruments Act; mere designation is insufficient.
The main legal point established in the judgment is the necessity of arraigning the company as an accused for maintaining the prosecution under Section 141 of the NI Act, and the requirement of speci....
Dishonour of cheque – Company/Firm is a necessary party where offence has been committed on behalf of Company/Firm.
A proprietorship firm can be proceeded against under Section 138 of the Negotiable Instruments Act, and the Trial Court has jurisdiction to summon the accused without recording the statement of the c....
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