Order on Board

10-05-2024

1. Heard Mr. Vivek Chopda, learned counsel for the petitioners as well as Mr. Praveen Das, learned counsel for the respondent and perused the materials available on record.

2. By way of present petition under Section 482 Cr.P.C. the petitioners seek to impugn and challenge the initiation and continuance of the criminal proceedings registered as Complaint Case No. 5389/2018 (M/s Sun Diesel Associates/CP Associate Vs. Sandeep Vidhani and Others) under Section 138 of the Negotiable Instruments Act, 1881 (for short, ‘the NI Act’)

in the Court of learned Judicial Magistrate First Class, Raipur.

3. The brief facts of the case are that the respondent/complainant has filed a complaint case under Section 138 of the Negotiable Instruments Act, 1881 before the Court of learned Judicial Magistrate First Class, Raipur, vide Complaint Case No. 5389/2018. In the compliant case, it has averred that the parties have engaged in a same business and therefore they are having business relation with each other. The another firm of the complainant “Sun Diesel” which is engaged in dealing with the automobile parts, lubricants and machinery which was purchased by the accused Ananda Devcon Pvt. Ltd. For the total consideration of Rs. 2 Crore. In lieu of the said transaction, the firm Ananda Devcon Pvt. Ltd./accused persons have issued a cheque of ICICI Bank, Mangla chowk, Bilaspur branch, for Rs. 2 Crore in the name of the complainant C.P. Associates. When the said cheque was deposited in the bank account of the complainant at Indian Overseas Bank, Tatiband, Raipur branch, on 06-08-2018, it was dishonoured by the payee bank for want of sufficient amount in the bank account of accused persons. After service of legal demand notice, the complaint case under Section 138 of NI Act has been filed on 11-10-2018 before the learned trial court. The complaint case was registered on 11- 10-2018 itself and notices were issued to the accused persons/petitioners.

4. Learned counsel for the petitioners submits that without arraying the Company as the party / non-applicant, the complaint is not maintainable. The cheque has been issued by the authorized signatory of Ananda Devcon Private Limited whereas Company has not been arrayed as a party / non-applicant. He placed reliance on the judgment passed by the Hon’ble Supreme Court in the matter of Himanshu Vs. B. Shivamurthy and Another, reported in (2019) 3 SCC 797, wherein the Hon’ble Supreme Court has held that in absence of Company being arrayed as accused, prosecution of appellant-accused not maintainable. The Hon’ble Supreme Court held that commission of offence by the company is an express condition precedent to attract the vicarious liability of others and the word “as well as the company” makes it clear when the company can be prosecuted, then only the persons mentioned in the other categories could be vicariously liable for the offence subject to the averments in the petition and proof thereof that the company is a juristic person. At para 7, 8, 9,10, 12 & 13 held as under :

“7. The first submission on behalf of the appellant is no longer res integra. A decision of a three-Judge Bench of this Court in Aneeta Hada v. Godfather Travels and Tours Private Limited (2012) 5 SCC 661 governs the area of dispute. The issue which fell for consideration was whether an authorized signatory of a company would be liable for prosecution under Section 138 of the Negotiable Instruments Act, 1881 without the company being arraigned as an accused. The three Judge Bench held thus: (SCC p.688 para 58)-

“58. Applying the doctrine of strict construction, we are of the considered opinion that commission of offence by the company is an express condition precedent to attract the vicarious liability of others. Thus, the words “as well as the company” appearing in the section make it absolutely unmistakably clear that when the company can be prosecuted, then only the persons mentioned in the other categories could be v