Manish Jain vs Surender Singh

Crl. Misc. No. M-26819 of 2012 (O&M) -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Crl. Misc. No. M-26819 of 2012 (O&M) Date of decision : 25.02.2015

Manish Jain .... Petitioner

Versus

Surender Singh ... Respondent

CORAM : HON'BLE MS.JUSTICE RITU BAHRI

***

Present : Mr. Aalok Jagga, Advocate for the petitioner

Mr. Davinder Bir Singh, Advocate for the respondent.

1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest?

***

RITU BAHRI, J.

This petition under Section 482 Cr.P.C is for

quashing of complaint bearing No. 23 dated 10.01.2012 (P-

13) filed by the respondent/complainant under Section 138

of Negotiable Instruments Act, 1881 (for short 'the Act') and

summoning order dated 14.05.2012 (P-6), vide which the

petitioner has been summoned to face the trial.

The complainant is a proprietor of Rathee Sales

Corporation, Sector 5, near Mata Sheetla Mandir, Gurgaon.

On 17.02.2011, the complainant made an agreement with

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land lords/farmers Sh. Mangat Ram and others to purchase

their land approx 7000/- sq yards, which is situated at village

Sarai Alawardi, Tehsil and District Gurgaon for total sale

consideration amount of Rs.8,20,00,000/- (Eight crores

twently lacs). The date of registration of sale deed was fixed

as 07.07.2011 in the office of Sub Registrar, Gurgaon. On

20.06.2011, the accused/petitioner Manish jain approached

the complainant/respondent through Sh. Subhash Rawal,

proprietor of Shriram properties, Pal Vihar Gurgaon and

requested the complainant that the accused are interested

to purchase 6560 sq yards out of the aforesaid land. The

accused offered a consideration amount of Rs.11,28,00,000/-

(Eleven crores and twenty eight lacs) of the aforesaid

property. The accused gave an advance of Rs.20,00,000/-

(twenty lacs) through two cheques in the presence of

witnesses. A receipt was also executed by the complainant

and the accused and the same was witnessed by Sh.

Subhash Rawal. The accused promised the complainant that

the balance sale consideration amount of Rs.11,08,00,000/-

would be paid on or before 07.07.2011.

The accused gave two cheques i.e cheque bearing

No. 110481 dated 7.7.2011 for a sum of Rs.75,00,000/-

(seventy lacs) and cheque No. 110484 dated 7.7.2011 for a

sum of Rs.40,00,000/- (forty lacs) drawn on Standard

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Chartered Bank, Branch Greater Kailash, Part-I, New Delhi in

favour of Rathi Sales Corporation in presence of witnesses.

On presentation, the above cheques were dishonored/unpaid

by the banker of the accused with the specific endoresement

"payment stopped by drawer" and intimation regarding the

same was given to the respondent by his banker on

19.11.2011. Thereafter, a legal notice was issued to the

accused on 30.11.2011 by the complainant through its

Advocate calling upon the accused to pay within 15 days of

the receipt of the legal notice the cheque amount as

stipulated in the provisions of the Act. The accused gave

reply dated 07.12.2011 to the legal notice. Hence the

complaint was filed by the complaint against the accused

under Section 138 of the Act and Section 420 IPC and the

Court below has passed the summoning order dated

14.05.2012 (P-6), vide which the petitioner has been

summoned to face the trial.

The petitioner is seeking quashing of complaint as

well as summoning orders in the present petition.

Mr. Jagga, learned counsel for the petitioner, has

argued that the above said two cheques have been issued

as the complainant had approached to the petitioner and

stated that he had entered into agreement to sell dated

18.02.2011 with M/s Ansal Properties and Industries Pvt Ltd.

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Ltd in respect of land measuring 29 kanals 06 marlas,

situated in the revenue estate of Sarai Alawardi, Tehsil and

District Gurgaon and on account of execution of the

aforesaid agreement, he is in a position to get the land

referred to above transferred in favour of the

accused/petitioner. He had further told the accused that in

terms of alleged agreement of sale dated 18.02.2011, he

held the unhindered right to purchase the land in favour of

his nominee. However, on 08.07.2011, the petitioner was

made aware of the agreement dated 18.02.2011 (P-2) which

was entered into between M/s Ansal Properties and

Industries Pvt Ltd and Sh. Sanjeev Kumar Sharma and

others. Thus, the representation of the complainant was

found to be false. Later on the petitioner/accused came to

know that M/s Ansal Properties and Industries Pvt Ltd filed a

criminal complaint dated 26.08.2011 with the Assistant

Commissioner of Police, Gurgaon stating that the said

agreement was never authorized to be executed in favour of

the signatories, namely Sanjiv Kumar Sharma and others.

Thus, the petitioner asked his bankers to stop the payment

of the above two cheques. No transaction took place

between the petitioner and the respondent and thus, no

offence is made out against the petitioner under Section 138

of the Act, as the prosecution would only lie if the cheque is

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dishonored on account of funds insufficient or exceeds

arrangement. In the present case, the chequ has not been

dishonored on account of the aforesaid two reasons but on

account of payment stopped. Pursuant to the agreement (P-

2), the respondent could not transfer any land in favour of

the petitioner, thus, the petitioner has stopped the payment

of the aforesaid two cheques.

Mr. Jagga has further argued that the petitioner

had also filed the complaint against the respondent with the

allegations that the respondent had taken away Rs.75 lacs in

cash and cheques worth Rs.75 lacs and Rs.40 lacs

respectively and the petitioner had instructed his bankers to

stop the payment of the same. During the course of

investigation, the matter was compromised between the

parties on the statement given by the petitioner on

10.02.2012 vide P-11 and P-12. The complainant did not

inform the trial Court with the regard to the settlement of

the matter before the police authorities and thus, the trial

Court had wrongly summoned the petitioner.

Learned counsel further argues that the complaint

was filed by the respondent whereas the cheque was drawn

in favour of Rathi Sales Corporation. The cheque had been

issued by the Company and the petitioner signed as a

Director but the Company is not made as a party in the

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complaint. Thus, the complaint is liable to be dismissed.

Further no enquiry was conducted by the trial

Court as contemplated under Section 202 Cr.P.C and thus,

the summoning order dated 14.05.2012 is against the

judgment passed by this court in a case of Nereta Sinha vs.

PS Raj Steel Pvt. Ltd 2010(3) PLR 4.

Petitioner had earlier filed CRM-M-24880 of 2012

seeking quashing of complaint filed by the respondent

alleging handing over a cheque of Rs.1.5 crores to the

respondent, which is pending consideration before this

Court.

Reference has been made to judgment of Hon'ble

the Supreme Court of India in cases of Aneeta Hada vs. M/s

Godfather travels and tours Pvt. Ltd, 2012(2) RCR (Crl) 854,

Anil Gupta vs. Star India Pvt. Ltd and another, 2014 (3) RCR

(Crl) 587 and judgment passed by this Court in a case of

Vijay Kumar Bansal and another vs. Shiv Kumar Grover,

2013 (7) RCR Criminal 1902 to contend that in a complaint

of dishonor of cheque under Section 138 of the Act,

prosecuting a Director without arraying the Company being

as accused, the complaint is not maintainable. Proceedings

against Managing Director could not continue in absence of

arraigning of Company as an accused, under Section 138

read with Section 141 of the Act.

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In Anneta Hada's case (supra), Hon'ble the

Supreme Court while dealing with Section 85 of Information

and Technology Act, 2000 has held that Directors could not

be prosecuted without the company being arrayed as an

accused. For prosecuting the Director under Section 85 of

2000 Act arraying of Company as an accused is an

imperative.

Learned counsel has further referred to judgment

passed by Madras High Court in a case of B. Adhikari vs.

Ponraj, 1996 (2) Crimes 179, Jharkhand High Court in a

cases of Shahid Ali vs. State of Jharkhand and another, 2012

(1) RCR (Criminal) 643, Rashid Ali vs. State of Jharkhand and

another, Karnataka High Court in a case of Dr. Geetha vs.

Vesanthi S. Shetty and 2011(6) RCR (Criminal) 282 on the

point that cause of action arises of the drawee when

demand notice is issued to the drawee within 15 days of the

date of dishonor of cheque. Requirement of Section 138 (b)

and (c) is mandatory.

On notice, a reply has been filed by the

respondent denying that the respondent had entered into

agreement dated 18.02.2011 with M/s Ansal Properties and

Industries Pvt Ltd in respect of the land situated in the

Revenue Estate of Village Sarai Allawards, Tehsil and Distt

Gurgaon. The receipt produced by the petitioner (P-1) is a

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forged and fabricated document which does not bear the

signatures of the respondent. The respondent had entered

into agreement with Land Lords/Farmers Sh. Mangat Rai and

others to purchase their land measuring approximately 7000

sq yards situated in the Revenue Estate of Sarai Allawards,

Tehsil and Distt Gurgaon for a total sale consideration

amount of Rs.8 crores 20 lacs. The date of registration of the

sale deed was fixed as 7.7.2011 and 8.8.2011 in the office of

Sub Registrar Gurgaon. One of the clause of the agreement

provided that the respondent could get the sale deed

registered in his name or the name of any of his nominee or

any other person for which there will be no objection, as per

Annexure R-1 and R-2. In the meantime, the petitioner

approached the respondent to purchase 6560 sq yards out

of the aforesaid land. The accused offered a consideration

amount of Rs.11,28,00,000/- (Eleven crores and twenty eight

lacs) of the aforesaid property. The accused gave an

advance of Rs.20,00,000/- (twenty lacs) through two

cheques in the presence of witnesses. A receipt was also

executed by the complainant and the accused and the same

was witnessed by Sh. Subhash Rawal. The accused promised

the complainant that the balance sale consideration amount

of Rs.11,08,00,000/- would be paid on or before 07.07.2011

(R-3). The accused gave two cheques bearing No. 110481

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dated 7.7.2011 for a sum of Rs.75,00,000/- (seventy lacs)

and cheque No. 110484 dated 7.7.2011 for a sum of

Rs.40,00,000/- (forty lacs) drawn on Standard Chartered

Bank, Branch Greater Kailash, Part-I, New Delhi in favour of

Rathi Sales Corporation in presence of witnesses. On

presentation, the above cheques were dishonored/unpaid by

the banker of the accused with the specific endorsement

"payment stopped by drawer" and intimation regarding the

same was given to the respondent by his banker on

19.11.2011. Thereafter, a legal notice was issued to the

accused on 30.11.2011 by the complainant to pay within 15

days of the receipt of the legal notice the cheque amount as

stipulated in the provisions of the Act. The accused gave

reply dated 07.12.2011 to the legal notice and failed to

repay the amount stating. A complaint was also submitted

by the respondent to the Police Commissioner, Gurgaon on

22.11.2011 with regard to the fraud played by the petitioner

and the bouncing of the cheque in question and the abuses

and threat given by the petitioner by hiring gunda elements

for demanding the balance amount regarding the deal dated

20.06.2011. The respondent had earlier approached the

S.H.O of Police Station Palam Vihar, Gurgaon with a

complaint against the petitioner but the petitioner has

connived with the police officials of the said Police Station

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and no action was taken by the police. The copy of

complaint dated 22.11.2011 to the Police Commissioner

Gurgaon is Annexure R-4. A deal was entered in to between

the petitioner and the respondent on 20.06.2011 through Sh.

Subhash Rawal, proprietor of Shri Ram Properties with

regard to the land measuring 6560 sq yards situated in

village Sarai Allawardi, Tehsil and District Gurgaon for a total

sale consideration of Rs.11,28,00,000/-. Rs.20 lacs was paid

as earnest money and The accused promised the

complainant that the balance sale consideration amount of

Rs.11,08,00,000/- would be paid on or before 07.07.2011.

The accused gave two cheques i.e cheque bearing

No. 110481 dated 7.7.2011 for a sum of Rs.75,00,000/-

(seventy lacs) and cheque No. 110484 dated 7.7.2011 for a

sum of Rs.40,00,000/- (forty lacs) drawn on Standard

Chartered Bank, Branch Greater Kailash, Part-I, New Delhi in

favour of Rathi Sales Corporation in presence of witnesses.

On presentation, the above cheques were dishonored/unpaid

by the banker of the accused with the specific endoresement

"payment stopped by drawer" and intimation regarding the

same was given to the respondent by his banker on

19.11.2011.

Respondent further stated that there is no

agreement dated 17.02.2011 (P-2), which was shown by the

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petitioner and the respondent had nothing to do with the

said agreement. Annexure R-3 clearly shows that there was

agreement between the petitioner and the respondent for

sale of plot measuring about 6560 sq yards belonging to

Mangat Ram, Balwan Singh etc village Sarai Alawardi and

the complaint (P-13) was filed with regard to dishonor of the

above said two cheques. The petitioner is trying to confuse

the facts by making reference to agreement dated

18.02.2011 (P-2) which was never shown by the respondent

to the petitioner and the respondent has nothing to do with

the said agreement. It has further been stated with regard to

the complaint regarding cheque of Rs.1.5 crores, the

compliant was dismissed by the the trial Court and

accordingly, CRM-M-24880 of 2012 filed by the petitioner

was dismissed as having been infructuous on 04.10.2012 by

this Court. Hence, the plea taken by the petitioner that he

had given a cheque of Rs.1.5 crores to the complainant, is

liable to be rejected.

Learned counsel for the respondent has argued

that in order to remove the objection that the complaint has

not filed against the Company, an application under Section

319 Cr.P.C has been filed before the trial Court to implead

the Company as a party, which is pending consideration.

Reference has been made to judgment passed by

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Hon'ble the Supreme Court in a case of Hardeep Singh vs.

State of Punjab, 2014(1) RCR (Criminal) 623 wherein the

Constitution Bench has consideration the provisions of

Section 319 Cr.P.C and held that Section 319 Cr.P.C. springs

out of the doctrine judex damnatur cum nocens absolvitur

(Judge is condemned when guilty is acquitted) and this

doctrine must be used as a beacon light while explaining the

ambit and the spirit underlying the enactment of Section

319 Cr.P.C. The entire effort, therefore, is not to allow the

real perpetrator of an offence to get away unpunished. This

is also a part of fair trial and in our opinion, in order to

achieve this very end that the legislature thought of

incorporating provisions of Section 319 Cr.P.C. It is with the

said object in mind that a constructive and purposive

interpretation should be adopted that advances the cause of

justice and does not dilute the intention of the statute

conferring powers on the court to carry out the above

mentioned avowed object and purpose to try the person to

the satisfaction of the court as an accomplice in the

commission of the offence that is subject matter of trial.

Heard learned counsel for the parties.

The facts which are not in dispute are that the

respondent-Surinder Singh, proprietor of Rathee Sales

Corporation along with Mangat Ram, Balwan Sigh etc, had

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entered in to agreement to sell for the land measuring 6560

sq yards on 20.06.2011 with M/s Santur City Pvt. Ltd of

which the present petitioner was the Director, for an amount

of Rs.11,28,00,000/-. The last date for registration of sale

deed was fixed as 07.07.2011. The complainant received

Rs.20,00,000/- as earnest money from the petitioner being

the Director of M/s Santur City (R-3). A complaint was also

submitted by the respondent to the Police Commissioner,

Gurgaon on 22.11.2011 against the petitioner, with regard to

the fraud played by him and the bouncing of the two above

mentioned cheques and the abuses and threat given by the

petitioner by hiring gunda elements for demanding the

balance amount regarding the deal dated 20.06.2011.

However, in the petition, the petitioner has placed

on record a receipt dated 07.07.2011 wherein the

complainant had entered in to agreement dated 18.02.2011

with M/s Ansal Properties & Industries in respect of land

measuring 29 kanals 06 marlas, situated at village Sarai

Alawardi, Tehsil and District Gurgaon. Upon this

representation, the respondent demanded Rs.1.5 crores

from the petitioner by alleging that on the basis of the

aforesaid agreement, the respondent would get the sale of

the aforesaid land in favour of the petitioner, being director

of M/s Santur City. The petitioner paid Rs.1,50,00,000/-

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(Rs.75,00,000/- in cash and Rs.75,00,000/-, vide Cheque No.

110481 dated 07.07.2011) from M/s Santur City (P-1).

However, the respondent in its written stated denied this

fact and stated The receipt produced by the petitioner (P-1)

is a forged and fabricated document which does not bear the

signatures of the respondent. The respondent had entered

into agreement with Land Lords/Farmers Sh. Mangat Rai and

others to purchase their land measuring approximately 7000

sq yards situated in the Revenue Estate of Sarai Allawards,

Tehsil and Distt Gurgaon for a total sale consideration

amount of Rs.8 crores 20 lacs. The date of registration of the

sale deed was fixed as 7.7.2011 and 8.8.2011 in the office of

Sub Registrar Gurgaon.

Mr. Jagga, learned counsel for the petitioner

further informed the Court that the petitioner had earlier

filed CRM-M-24880 of 2012 seeking quashing of complaint

filed by the respondent alleging handing over a cheque of

Rs.1.5 crores to the respondent, which was dismissed as

having become infructuous, as the petitioner stands

acquitted in criminal complaint No. 1391/2012 dated

10.01.2012 filed by the complainant.

On 08.07.2011, the petitioner on behalf of M/s

Santur City wrote a letter to the Banker Standard Bank,

Greater Kailash, Part-I, New Delhi directing the Bank to stop

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the payment of the above mentioned two cheques of Rs.75

lacs and Rs.40 lacs respectively, which had been issued by

the petitioner on behalf of its Company. Learned counsel for

the petitioner has further informed the Court that the

petitioner, his Company and sister Companies are all

maintaining their accounts with the same bank i.e Standard

Chartered Bank from where the cheques in question were

issued. When the cheques were issued, on the said date,

the accounts of the petitioner and the company had jointly

sufficient balance and besides that there was also an FDR of

over Rs.1 crore. The bank statements are Annexure P-5. The

petitioner was successful in saving his two cheques but a

payment of Rs.75 lacs had been paid by the petitioner, in

cash to the respondent. Thus, on 14.11.2011, the petitioner

through his counsel issued a legal notice to the

respondent,claiming the refund of Rs.75 lacs, which he had

received fraudulently from the petitioner by cash by

breaching his trust (P-6). Thereafter, the petitioner filed a

complaint with the Commissioner of Police, Gurgaon

requesting him to register an F.I.R against the respondent

for committing a fraud upon the petitioner (P-6).

The respondent had also field a complaint levelling

frivolous allegations to the effect that some amount was to

be paid by the petitioner and the above referred amount of

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Rs.1.90 crores was paid in lieu of the same. Thereafter, a

compromise was affected between the petitioner and the

respondent (P-11 and P-12),which shows that the matter had

been amicably resolved between the parties and the

petitioner had agreed that he will take no action against

Surender Rathi, Proprietor, Rathi Sales Corporation. But after

the compromise was affected between the parties, the

respondent filed a complaint dated 10.01.2012 (P-13) on

account of dishonor of the cheques and the petitioner was

summoned, vide order dated 14.05.2012 (P-14). A perusal of

the two cheques annexed with the complaint shows that it

had been signed by the petitioner, being director of M/s

Santur City Pvt. Ltd. It is no longer in dispute that it was M/s

Santur City Pvt. Ltd who had entered into agreement with

M/s Rathee Sales Corporation even as per money receipt

Annexure R-3, the petitioner on behalf of its Company had

paid the earnest money. Further the petitioner on behalf of

the Company had given its reply dated 07.12.2011 to the

legal notice dated 30.11.2011.

The cheques in questions had been issued by the

Company and signed by the petitioner on behalf of the

Company, being a Director of the Company. The account

from where the cheque was drawn, is in the name of the

Company and as per Section 138 of Negotiable Instruments

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Act, it was the Company which shall be deemed to have

committed the offence on account of dishonor of cheques.

Section 138 of Negotiable Instruments Act reads as under:-

Section 138 (a) (b) and (c) of the Act and Section 141

reads as under:-

"Section 138 in The Negotiable Instruments Act, 1881 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 19 [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 holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque,20 [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

© the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice."

GAURAV 2015.03.19 13:36 I attest to the accuracy and integrity of this document Crl. Misc. No. M-26819 of 2012 (O&M) -18- Section 141 in The Negotiable Instruments Act, 1881

21 [ 141 Offences by companies. --

(1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence: 22 [Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter.] (2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.-- For the purposes of this section,--

(a) "company" means any body corporate and includes a firm or other association of individuals; and

(b) "director", in relation to a firm, means a partner in the firm.]

In Anneta Hada's case (supra), Hon'ble the

Supreme Court while dealing with the above said provision,

has held in paragraph 42 and 43 as under:-

42. We have referred to the aforesaid passages only to highlight that there has to be strict observance of the provisions regard being had to the legislative intendment because it deals with penal provisions and a penalty is not to be imposed affecting the rights of persons whether juristic entities or individuals, unless they are arrayed as accused. It is to be kept in mind that the power of punishment is vested in the legislature and that is absolute in Section 141 of the Act which clearly speaks of commission of offence by the company. The learned counsel for the respondents have vehemently urged that the use of the term as well as in the

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Section is of immense significance and, in its tentacle, it brings in the company as well as the director and/or other officers who are responsible for the acts of the company and, therefore, a prosecution against the directors or other officers is tenable even if the company is not arraigned as an accused. The words as well as have to be understood in the context. In Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. and others, (1987) 1 SCC 424 it has been laid down that the entire statute must be first read as a whole, then section by section, clause by clause, phrase by phrase and word by word. The same principle has been reiterated in Deewan Singh and others v.

Rajendra Prasad Ardevi 2007 (10) SCC 528 and Sarabjit Rick Singh v. Union of India, 2008 (2) SCC 417. 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 vicariously liable for the offence subject to the averments in the petition and proof thereof. One cannot be oblivious of the fact that the company is a juristic person and it has its own respectability. If a finding is recorded against it, it would create a concavity in its reputation. There can be situations when the corporate reputation is affected when a director is indicted.

43. In view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can GAURAV 2015.03.19 13:36 I attest to the accuracy and integrity of this document Crl. Misc. No. M-26819 of 2012 (O&M) -20-

only be brought in the dragnet on the touchstone of vicarious liability as the same has been stipulated in the provision itself. We say so on the basis of the ratio laid down in C.V. Parekh (supra) which is a three Judge Bench decision. Thus, the view expressed in Sheoratan Agarwal (supra) does not correctly lay down the law and, accordingly, is hereby overruled. The decision in Anil Hada (supra) is overruled with the qualifier as stated in paragraph 37. The decision in Modi Distilleries (supra) has to be treated to be restricted to its own facts as has been explained by us hereinabove.

Thereafter, in Anil Gupta's case (supra), Hon'ble

the Supreme Court in paragraph 15 held as under;-

15. In the present case, the High Court by impugned judgment dated 13th August, 2007 held that the complaint against respondent no.2-Company was not maintainable and quashed the summon issued by the Trial Court against respondent no.2-Company. Thereby, the Company being not a party to the proceedings under Section 138 read with Section 141 of the Act and in view of the fact that part of the judgment referred to by the High Court in Anil Hada (supra) has been overruled by three Judge Bench of this Court in Aneeta Hada (supra), we have no other option but to set aside the rest part of the impugned judgment whereby the High Court held that the proceedings against the appellant can be continued even in absence of the Company. We, accordingly, set aside that part of the impugned judgment dated 13th August, 2007 passed by the High Court so far it relates to appellant and quash the summon and proceeding pursuant to complaint case No.698 of

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2001 qua the appellant.

In the present case, the complainant filed the

complaint bearing No. 23 dated 10.01.2012 (P-13) filed by

the respondent/complainant under Section 138 of the Act

against the petitioner, who is merely a Director of M/s

Santur City Pvt. Ltd, which was not impleaded as a party.

The petitioner being a Director of the Company had only

signed the cheques and the account was of the Company.

The complainant itself was not maintainable.

The second argument of learned counsel for the

respondent has informed that his application under Section

319 Cr.P.C for impleading the Company as an accused is

pending before the Court below to remove the technical

defect, is liable to be rejected. The provision of Section 319

Cr.P.C under the Act, has been considered by Madras High

Court in cases of Suryanarayanan vs. M/s Anchor Marine

Service, 1998(94) Comp Cas 874, Anandan vs. Arivazhagan,

1998(1) BC 573 and S. Vishwanathan vs. United

Phosphorous Ltd, 1999(97) Comp Cas 922 and it has been

held that when the complaint has the initial defect in its

sustainability, the defect cannot be cured by amending the

proceedings. Section 319 Cr.P.C no doubts permits for

impleading any other accused, who was party to the

commission of the offence but impleading such co-accused

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under Section 319 Cr.P.C will not have any bearing as to the

maintainability of the proceedings against other accused.

Section 319 Cr.P.C is not intended for curing the infirmity in

ther proceedings but only to bring all the culprits before the

Court when their role in the commission of offence was

brought to light only after the evidence before the Court.

The judgment referred by learned counsel for the

respondent i.e Hardeep Singh vs. State of Punjab, 2014(1)

RCR (Criminal) 623 will not be applicable to the facts of the

present case under the Negotiable Instruments Act.

In the present case, the alleged cheques were part

of the complaint (P-13) and the amount was to debited from

the account of the Company, which has not been arrayed as

a party, therefore as per Section 138 and 141 of the Act, the

complaint itself is not maintainable against the petitioner,

who is a director of the Company.

With the above observations, complaint bearing

No. 23 dated 10.01.2012 (P-13) filed by the

respondent/complainant under Section 138 of the Act as well

as summoning order dated 14.05.2012 (P-6) are hereby set

aside.

The petition stands allowed.

( RITU BAHRI ) 25.02.2015 JUDGE G.Arora

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