HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application U/s 482 No. 1140 of 2016

22 April, 2025 Anuj Sharma --Applicant Versus Rajkumar --Respondent ----------------------------------------------------------------------

Presence:-

Mr. B N Molakhi, Advocate for the Applicant.

Mr. Vikas Bahuguna, for the respondent.

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Hon'ble Alok Mahra, J.

By means of present C-482 Petition, the applicant seeks to quash the summoning order dated 24.11.2015 as well as the entire proceedings of Criminal Complaint Case No. 1944 of 2015, Shri Rajkumar vs. Anuj Sharma, under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the NI Act’), PS Kotwali, District Dehradun.

2. Applicant, who is Director of M/S Ekta Electrotech Pvt. Ltd. A-6, Industrial Area, Vikas Nagar, Dehradun, has challenged the summoning order dated 24.11.2015, whereby the learned 1st Additional Civil Judge (J/D), Dehradun has summoned the applicant for offence under Section

138 of the NI Act.

3. Main ground raised by the applicant is that the alleged Cheque, which was shown to have been dishonoured by the complainant, was issued by the Company through its Director, i.e., the applicant. He has further submitted that neither any notice as contemplated under Section 138(b) of the NI Act, was ever given to the company nor the company was arrayed as party in the complaint. Therefore, the complaint is not maintainable as per the provisions of Section 141 of the Negotiable Instruments Act, 1881. Learned counsel for the applicant has further submitted that learned 1^st Additional Civil Judge (J/D), Dehradun has not applied his mind while issuing summons to the applicant.

4. Learned counsel for the applicant has placed reliance upon the Judgement in Himanshu v. B. Shivamurthy, (2019) 3 SCC 797, wherein on similar facts, the Apex Court has held that in the absence of a notice of demand being served on the company and without compliance with the proviso to Section 138, the High Court was in error in holding that the company could now be arraigned as an accused.

5. Learned counsel for the complainant /respondent has fairly conceded that though the company was not arrayed as party in the complaint neither any demand notice was issued to the company and only the applicant who was Director of the Company was given the notice and was arrayed as party in the complaint. He has, therefore prayed that this Court in the interest of justice remand back the matter and liberty be granted to the complainant to array the company as party in the complaint or in the alternate he may be granted the liberty to file a fresh complaint.

6. The contention of learned counsel for the respondent cannot be sustained in view of Section 138 of the Negotiable Instruments Act, 1881. For ready reference Section 138 of the NI Act is being quoted herein below:

138. Dishonour of cheque for insufficiency, etc., of funds in the account.—

Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained in this section shall apply unless—

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the h