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IN THE HIGH COURT OF ALLAHABAD
ARUN KUMAR SINGH DESHWAL, J.
Smt. Shashibala Agrawal - Applicant
Versus
State of Uttar Pradesh and Another – Opposite Parties
Application U/S 482 No. 8448 Of 2024
Decided On : 23-04-2024
N.I. Act - Cheque Bounce - Sections 138, 141 N.I. Act; Sections 204, 256, 378(4), 399(2), 401(4) Cr.P.C. - The court discussed the provisions of the Negotiable Instruments Act, particularly Section 138 concerning dishonor of cheques, and Section 141 regarding the liability of directors of a company. It also analyzed the Criminal Procedure Code sections related to the dismissal of complaints and the powers of the Sessions Judge in revision. The court interpreted that the signatory of a cheque can be summoned even if the company is also an accused, provided the cheque was issued in discharge of a liability. The court emphasized the importance of expeditious trials under the N.I. Act, directing the lower court to conclude the proceedings within six months.
Fact of the Case:
The applicant sought to quash the proceedings of a complaint case for cheque dishonor under Section 138 of the N.I. Act. The complaint alleged that a cheque for Rs. 11,80,000 issued by the applicant, a director of the company, bounced. Despite receiving a statutory notice, the applicant did not pay the amount, leading to the complaint. The case was dismissed for want of prosecution but was later reinstated by the revisional court.
Finding of the Court:
The court found that the applicant, as a signatory director, could be summoned without the company being summoned separately. The dismissal of the complaint for want of prosecution did not equate to an acquittal, and the revisional court had the jurisdiction to correct the dismissal order. The applicant's failure to appear for six years and her late challenge to the summoning order were also noted.
Issues: 1. Whether the signatory director can be summoned without the company being summoned in a cheque bounce case. 2. Whether the dismissal of a complaint for want of prosecution can be challenged by revision or only by appeal.
Ratio Decidendi: The court held that a signatory director can be summoned in a cheque bounce case even if the company is also an accused, as per the provisions of the N.I. Act. It also clarified that the dismissal of a complaint for want of prosecution does not constitute an acquittal, allowing for revision to correct such orders.
Final Decision: The application was dismissed, and the trial court was directed to expedite the proceedings of the complaint case within six months.
JUDGMENT :
(Arun Kumar Singh Deshwal, J.) :
1. Heard Sri Sunil Kumar, learned counsel for the applicant and Sri Rajeev Kr. Singh, learned A.G.A. for the State.
2. The instant application has been filed seeking quashing of the entire proceeding of Complaint Case No. 5449 of 2017 (Nimesh Agrawal vs. M/s Anupam Omerian Infrastructure Pvt. Ltd. and others), u/s 138 N.I. Act, P.S. Hari Parwat, District Agra, pending before Additional Court No.3, Agra and also the impugned order dated 28.2.2024 passed by Additional Sessions Judge, Court No.1, Agra, in Criminal Revision No. 769 of 2023 (Nimesh Agrawal vs. State of U.P.).
3. The facts giving rise to the present case are that opposite party No.2 had filed a complaint case No. 5449 of 2017, impleading the company M/s Anupam Omerian Infrastructure Pvt. Ltd. as well as two of its directors including the present applicant as respondents-accused, with the allegation that the cheque of Rs.11,80,000/-bearing No. 044298 dated 19.4.2017, signed by the applicant was handed over to opposite party No.2 in discharge of liability on behalf of her company and on bouncing of the same on 20.5.2017, the statutory notice dated 22.5.2017 was sent to all the respondents-accused including the present applicant which was served upon them on 13.6.2017. Thereafter, despite receiving the statutory notice, the accused respondents, including the present applicant, did not pay the cheque amount. Learned A.C.J.M., Court No.12, Agra, on considering the aforesaid complaint and the statement and other documents filed in support of the complaint, issued a summon against the applicant by order dated 9.11.2017. In that order, it was clearly mentioned that the present applicant issued the cheque in question, therefore, instead of summoning the company, i.e. M/s Anupam Omerian Infrastructure Pvt. Ltd., the present applicant was summoned being its director and signatory of the cheque in question.
4. Thereafter, that case remained pending from 2017 to 2023. However, the present applicant did not appear before the court, despite the issuance of summons, bailable warrant and non-bailable warrant by the court concerned. The order sheet of this case also shows that since 10.3.2022, opposite party No.2/complainant did not appear before the concerned court; therefore, by order dated 27.6.2023, the complaint was dismissed u/s 204 Cr.P.C. for want of prosecution. Thereafter, the complainant filed Criminal Revision No. 769 of 2023 before Sessions Judge, Agra, against the order dated 27.6.2023. During revision, the respondents-accused, including the present applicant, were also heard, and the revisional court, by the order dated 28.2.2024, allowed the revision by setting aside the order dated 27.6.2023 and directed the concerned court to decide the case on merit. Feeling aggrieved by the order dated 28.2.2024 passed by the revisional court, the applicant has filed the present application. In the present application, the applicant challenged the order of the revisional court dated 28.2.2024 and the criminal proceeding of Complaint Case No. 5449 of 2017.
5. The contention of learned counsel for the applicant is that the impugned proceeding is bad in the eyes of law because while passing the summoning order, the court below did not summon the company, despite the fact that the company was also impleaded as accused-respondent and in absence of the company, the signatory director cannot be summoned as the cheque in question was issued on behalf of the company and the same is barred by Section 141 N.I. Act. The second contention of learned counsel for the applicant is that the impugned order passed by the revisional court is also bad in the eyes of law because against the dismissal of a complaint for want of prosecution, an appeal lies and not the revision as dismissal of the complaint amounts to acquittal u/s 256 Cr.P.C. which is appealable order u/s 378(4) Cr.P.C.
6. Per contra, learned A.G.A. has vehemently opposed the contention of learne
A signatory of a cheque can be held liable under Section 138 of the N.I. Act, and the dismissal of a complaint for want of prosecution does not bar the revisional court from correcting such orders.
Summoning order not interlocutory, revision maintainable even by third party invoking suo motu power; barred if beyond 90-day limitation from issuance, challenge to consequential warrants ineffective....
Acquittal under Section 256 CrPC requires the presence of the complainant; absent this and with no evidence against the accused, dismissal cannot transition to acquittal.
Directors of a company cannot be summoned under Section 138 of the NI Act without specific allegations of their individual responsibility for the company's conduct.
A complaint under Section 138 of the Negotiable Instruments Act is not maintainable without the principal offender, the company, being arrayed as an accused, as established by the Supreme Court in An....
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 ....
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