Madhya Pradesh High Court
Babul Pramanik vs Brajkishor Agrawal on 30 September, 2022
Author: Sunita Yadav
Bench: Sunita Yadav
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SMT. JUSTICE SUNITA YADAV
MISC. CRIMINAL CASE No. 24414 of 2022
BETWEEN:-
BABUL PRAMANIK S/O N.C. PRAMANIK, AGED
ABOUT 40 YEARS, A-13 SHUBHANJALI APP.
TANSEN NAGAR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI PARTH DIXIT, LEARNED COUNSEL FOR
THE PETITIONER)
AND
BRAJKISHOR AGRAWAL S/O KALICHARAN
AGRAWAL DABRA (MADHYA PRADESH)
.....RESPONDENT/COMPLAINANT
(BY SHRI ANIL JHA, LEARNED COUNSEL FOR THE
RESPONDENT/COMPLAINANT)
Reserved on: 15.09.2022
Delivered on: 30 .09.2022
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This application coming on for hearing this day, the court passed the
following:
ORDER
The present petition under Section 482 of Cr.P.C. has been filed to quash the complaint registered as SCNIA 35/2019 before JMFC Dabra, District Gwalior and the consequent proceedings of taking cognizance as well as the order dated 05.05.2022 of framing charge under Section 138 of Negotiable Instruments Act.
The facts in brief to decide the petition are that the respondent/complainant filed a complaint under Section 138 of Negotiable Instruments Act alleging that the complainant deposited his hard earned money in the form of fixed deposit and in saving bank account in Unique Credit Co-operative Society. Since the respondent-complainant was in need of money; therefore, he went to the petitioner-accused and requested him to return his money. The petitioner-accused instead of paying in cash issued a cheque bearing No. 000365 dated 29.08.2017 & cheque bearing No. 000366 dated 29.08.2017 of Punjab and Sindh Bank Branch, Dabra of account No. 06431100000629 and assured that payment will be done by depositing them in the bank. However, when the respondent-complainant deposited the cheques for payment in his account on 06.11.2017, the cheques were dishonoured. The respondent-complainant sent a notice to the petitioner- accused, however, the petitioner-accused failed to pay the amount, thereafter, this case has been filed.
Learned counsel for the petitioner-accused argued that the petitioner has wrongly been implicated in the present case. The respondent- complainant has neither issued any notice to the Unique Credit Co-operative Society nor impleaded it as an accused, therefore, the complaint as such is not entertainable. Learned JMFC has illegally taken cognizance of the complaint, which is liable to be quashed. The petitioner-accused was the Manager of the Unique Credit Co-opeartive Society. He signed the cheques as an authorized signatory of the Unique Credit Co-operative Society for and on behalf of Unique Credit Co-operative Society. The petitioner-accused, therefore, cannot be prosecuted without prosecuting the Society as per provisions of Section 141 of the Negotiable Instruments Act. It is further argued that there cannot be any vicarious liability unless there is prosecution against the Society, therefore, the proceedings under Section 138 of Negotiable Instruments Act are bad in law and deserves to be quashed.
On the other hand, learned counsel for the respondent-complainant opposed the arguments rendered by the counsel for the petitioner-accused and prayed to reject the present petition.
Heard counsel for the parties and perused the record. The perusal of the record reveals that the cheques, as described above, were issued in favour of Brijkishor Agrawal/respondent by the petitioner. The copies of the cheques filed by the petitioner-accused show that he has signed the cheques for Unique Credit Co-opeartive Society Maryadit as an authorized signatory. As per the facts mentioned in petition, petitioner was the manager of Unique Credit Co-opeartive Society Maryadit and signed the cheques as its authorized signatory. The Delhi High Court in the case of Sarbajit Singh Vs. State of NCT of Delhi & Ors., vide order dated 08/10/2018 held that in the case u/s 138 of Negotiable Instruments Act, the company can be arrayed as an accused u/s 319 of Cr.P.C., if the company was ommitted from the array of accused earlier. The Special Leave Petition (Crl.) No. 15 of 2019 (M Tech Developers Pvt. Ltd. Vs. State of NCT of Delhi & Ors.) preferred against the said orer by company/firm was dismissed vide order dated 30.07.2019 by the Apex Court. Therefore, applying the above principle it would not be proper to quash the criminal proceedings of this case when the trial is in its early stage and the society can still be arrayed as an accused in the course of trial by the court exercising its jurisdiction U/s 319 of Cr.P.C. The learned counsel further argued that the co-operative society can not be arrayed as an accused exercising the jurisdiction U/s 319 of Cr.P.C. because the notice of demand as per proviso to Section 138 of NI Act has not been issused anainst it. However, The Apex Court in the case of M/s Bilakchand Gyanchand Co. Vs. A. Chinnaswami reported in AIR 1999 SC 2182 in Para No. 4 has held as under:
"4. In our opinion, the High Court erred in quashing the complaint. It is evident that proceedings were initiated by the appellant against A. Chinnaswami who happened to be the Managing Director of Shakti Spinners Ltd. The cheques in question which were dishonoured were signed by him."
The Apex Court further in Para Nos. 4 & 5 has held as under:
"We see no infirmity in the notice issued under Section 138 addressed to A. Chinnaswami, who was a signatory of the said cheques. The High Court, in our, opinion, clearly fell in error in allow the petition under Section 482 Cr.P.C. and in quashing the complaint & setting aside the proceedings pending before the Judicial Magistrate. For the aforesaid reasons, these appeals are allowed and the order of the High Court is set aside."
In this case also the petitioner-accused was working as Manager and had signed the cheques as an authorized signatory. Admitedly notice was given to him; therefore, in the light of case of M/s Bilakchand Gyanchand (supra) the Court can array the society as an accused in the course of trial exercising its jurisdiction U/s 319 of Cr.P.C.
In view of the above discussion this Court is not inclined to quash the complaint registered as SCNIA 35/2019 before JMFC Dabra, District Gwalior and the consequent proceedings of taking cognizance as well as the order dated 05.05.2022 of framing charge under Section 138 of Negotiable Instruments Act.
Accordingly, this petition is hereby dismissed.
(SUNITA YADAV) JUDGE chetna ALOK KUMAR 2022.09.30 18:27:41 +05'30' 11.0.23