Prosecution of company is mandatory condition precedent under Section 141 NI Act for vicarious liability of directors; complaints against directors quashed without impleading company.

JUDGMENT :

BRIJ RAJ SINGH, J.

1. Since these applications raise common questions of law and fact, therefore, the same are being decided by a common judgment.

2. Application U/s 482 Cr.P.C. Nos.4766 of 2012, 4762 of 2012, 4763 of 2012, 4764 of 2012, 4765 of 2012, 4767 of 2012, 4768 of 2012, 4769 of 2012 and 4770 of 2012 were filed by the applicant-Rajiv Gupta, seeking quashing of the orders dated 23.1.2012, 10.7.2012, 23.1.2012, 23.1.2012, 23.1.2012, 23.1.2012, 19.3.2012, 28.2.2012 and 23.1.2012 respectively passed by the Additional Chief Judicial Magistrate, Court No.28, District Lucknow in Complaint Case nos.41 of 2012, 1109 of 2012, 28 of 2012, 3044 of 2011, 40 of 2012, 29 of 2012, 372 of 2012, 347 of 2012 and 30 of 2012 respectively by means of which, cognizance was taken and summons were issued to the applicant under Section 138 of Negotiable Instrument Act (N.I. Act) as well as entire proceedings of the aforesaid cases.

3. Application U/s 482 Cr.P.C. Nos.4569 of 2022 and 4570 of 2022 were filed by the applicant-Santosh Kumar Bajpayi, seeking quashing of the entire criminal proceeding of Complaint Case Nos.5424 of 2017 and 5425 of 2017 respectively, filed under Section 138 of Negotiable Instrument Act, at Police Station-Gomti Nagar, District- Lucknow, including impugned summoning order dated 06.01.2018, and bailable warrant issued on 24.02.2022, pending before the Additional Court, Court no.1, Lucknow.

4. It is the case of the applicant-Rajiv Gupta that opposite party no.2 filed a complaint case against the applicant under Section 138 of the N.I. Act, stating therein that he is carrying on business under the name and style of Approach Advertising and Exhibitors Pvt. Ltd. The complainant advertised the products of the accused, against which he made payment through cheques in order to discharge his liabilities. It has been further mentioned in the complaint that the accused has made payment of Rs.1 lac on 30.10.2011 through cheque of Vijaya Bank, Kamala Nagar Branch. The cheque issued by the accused was presented to his banker Canara Bank, Hazratganj Branch, Lucknow for clearance and the same cheque was sent to the banker of the accused, but was returned back with the remark that the amount was insufficient. The complainant sent legal notices through his counsel on 29.11.2011, 12.4.2012, 24.11.2011, 5.11.2011, 28.11.2011, 25.11.2011, 27.1.2012, 3.1.2012 and 26.11.2011, calling upon the accused-Rajiv Gupta to make payment of the amount mentioned in the cheque within fifteen days of receipt of the legal notice. However, the accused refused to accept the legal notices.

5. It has been submitted by learned counsel for the applicant that the applicant-Rajiv Gupta is the Director of the Company, namely, M/s Slim Care Harbal Product Pvt. Ltd. and the same is registered with the Registrar of the Companies vide Registration no.55-103910/1999-2000. The work of the advertisement of the product of the company was given to the opposite party no.2 who had realized more than Rs.1,30,00000/- (one crore thirty lacs) from the year 2000 till the end of 2011 on the different dates. It has been submitted that sometimes the advertisements were issued without any release order issued by the authorized signatory of the Company. Sometimes the cheques were also taken by the opposite party no.2 in advance on the pretext of some urgency. The opposite party no.2 has not even whispered in the complaint that he had already realize