Court No. - 44
Case :- APPLICATION U/S 482 No. - 13324 of 2018 Applicant :- Hari Bhagwan Agarwal And Another Opposite Party :- State Of U.P. Counsel for Applicant :- Mohit Singh Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Mohit Singh, learned counsel for the applicants and the learned A.G.A. for the State.
This application under Section 482 Cr.P.C. has been filed challenging the order dated 07.03.2018 passed by the Additional Court, Varanasi in Complaint Case No. 1206 of 2017 (J.V.L. Agro Industries Ltd. Vs. M/S Bhagwan Vanaspati Mills Ltd. and others) under Section 138 of N. I. Act, Police Station- Jaitpura, District-Varanasi as well as the entire proceedings of the above mentioned complaint case.
From the record, it appears that a cheque dated 29.07.2010 valued at Rs.85 lacs was given by M/S Bhagwan Vanaspati Mills Ltd. to J.V.L. Agro Industries Ltd. Upon presentation of the cheque in the bank account of M/S J.V.L. Agro Industries Ltd., the same was not encashed. Consequently, the complainant J.V.L. Agro Industries Ltd. filed a complaint dated 05.04.2011 in respect of the disputed cheque in terms of section 138 of the N. I. Act. The opposite parties therein including the present applicants were summoned vide summoning order dated 04.06.2011 passed by the Additional Chief Judicial Magistrate, Court no. 1, Varanasi under section 138 N. I. Act.
Feeling aggrieved by the summoning order dated 04.06.2011, the present applicant no. 2 Seema Agarwal filed Criminal Misc. Application No. 32288 of 2011 (Seema Agarwal Vs. State of U.P. and another) before this Court. The aforesaid criminal misc. application was disposed of finally vide order dated 17.10.2011. The order dated 17.10.2011, which is on the record at page 22 of the paper book, is reproduced herein under.:-
"Heard learned counsel for the applicant and learned A.G.A. for the State-respondent.
The present application has been filed for quashing of the summoning order dated 04.06.2011 passed by the Additional Chief Judicial Magistrate, Court No. 1, Varanasi in Complaint Case No. 1150 of 2011, under Section 138 Negotiable Instrument Act, police station Jaitpura, district Varanasi.
The contention of the counsel for the applicant is that no offence against the applicant is disclosed and the present prosecution has been instituted with malafide intention for the purposes of harassment. He pointed out certain documents and statements in support of his contentions.
From the perusal of the material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicant. All the submissions made at the bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482, Cr.P.C. At this stage only a prima facie case is to be seen in the light of the law laid down by the Supreme Court in cases of R.P. Kapur Vs. State of Punjab, AIR 1960 SC 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P. Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283. The disputed defence of the accused cannot be considered at this stage. Moreover, the applicant has got a right of discharge under section 239, 245(2) or 227/228, Cr.P.C. as the case may be through a proper application for the said purpose and she is free to take all the submissions in the said discharge application before the trial Court.
The prayer for quashing of the summoning order dated 04.06.2011 is hereby refused.
However, it is provided that if the applicant appears and surrenders before the court below within a period of 30 days from today and applies for bail, then her prayer for bail shall be considered in view of the settled law laid down by the Seven Judges' decision of this Court in the case of Amarawati and another Vs. State of U.P.,2004(57) ALR-290 and in the recent decision of the Supreme Court in the case of Lal Kamlendra Pratap Singh v. State of U.P., reported in 2009 (4) SCC 437, after hearing the Public Prosecutor.
For a period of 30 days from today or till the disposal of the application for grant of bail, whichever is earlier, no coercive action shall be taken against the applicant. However, in case the applicant does not appear before the court below within the aforesaid period, coercive action shall be taken against him.
With the aforesaid directions, this application is finally disposed of."
Subsequent to the aforesaid order, the accused persons filed a preliminary objection dated 30.04.2012 through their counsel regarding the maintainability of the proceedings under Section 138 N. I. Act initiated by the complainant/opposite party no.2 herein. Thereafter, a discharge application dated 17.12.2012 was filed by the accused before the court below. The complainant filed his objection dated 06.07.2013 to the discharge application filed by the accused. Subsequently, the accused persons filed a rejoinder to the objection filed by the complainant. Ultimately, the discharge application filed by the accused persons was rejected by the court below vide order dated 07.03.2018. Feeling aggrieved by the order dated 07.03.2018 passed by the court below rejecting the discharge application as well as the entire proceedings of the complaint case no. 1206 of 2017 (J.V.L. Agro Industries Ltd. Vs. M/S Bhagwan Vanaspati Mills Ltd. and others) under Section 138 of N. I. Act, Police Station-Jaitpura, District-Varanasi, two of the accused persons, namely, Hari Bhagwan Agarwal and Seema Agarwal have approached this Court by means of the present application under Section 482 Cr.P.C.
Admittedly, the summoning order dated 04.06.2011, whereby all the accused persons, namely, H. B. Agarwal-Chairman, Sanjeev Agarwal-Managing Director and Seema Agarwal- Director were summoned in the above mentioned complaint case was challenged only by Seema Agarwal by means of Criminal Misc. Application No. 32288 of 2011 (Seema Agarwal Vs. State of U.P. and another) before this Court. Therefore, there is no challenge to the summoning order dated 04.06.2011 by the other two accused persons, namely, H. B. Agrawal and Sanjeev Agarwal.
This Court disposed of the Criminal Misc. Application filed by one of the co-accused Seema Agarwal by granting her the liberty to seek discharge in terms of Sections 239, 245 (2) or 227/228 Cr.P.C. as the case may be. However, the Court finds that subsequent to the order dated 17.10.2011 passed by this Court, the discharge application was filed by all the accused persons which has been rejected vide order dated 07.03.2018 and the same has been impugned in the present application. The present application, however, has been filed by only two of the accused persons.
A perusal of the order dated 07.03.2018 passed by the court below will go to show that the discharge application was filed by the accused persons primarily on the ground that the amount payable under the disputed cheque has already been paid to the complainant. It was further alleged that in fact a sum of Rs.94,15,825/- has been paid to the complainant during the period 16.08.2010 to 30.08.2010. Therefore, on the aforesaid factual premise, it was urged before the court below that there is no legally chargeable debt standing against the accused persons. However, the basis of the discharge claimed by the accused persons was seriously disputed by the complainant. According to the complainant, the liability arising out of the disputed cheque has not been paid and what has been paid during the period 16.08.2010 to 30.08.2010 is the amount payable towards different transactions. In the light of the aforesaid, the court below concluded that the issue as to whether there exists a legally chargeable debt or not can be decided only after the evidence of the parties has been adduced. Consequently, the court below rejected the discharge application.
Mr. Mohit Singh, the learned counsel for the applicants submits that the applicant no.1 is merely the Chairman of the Company whereas the applicant no.2 was a Director. He further submits that the present applicants were not at all responsible for managing the day to day affairs of the Company and therefore, the proceedings initiated by the opposite party no.2 against the present applicants are liable to be quashed by this Court. He has relied upon the judgement of the Apex Court in the Case of S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla and others reported in AIR 2005 Supreme Court 3512 in support of the aforesaid proposition.
Admittedly, the present applicants had been summoned vide summoning order dated 04.06.2011. The present applicants have not challenged the summoning order dated 04.06.2011 either before or in the present criminal misc. application. Therefore, the prayer made on behalf of the present applicants seeking quashing of the entire proceedings without specifically challenging the summoning order is misconceived. Apart from the above, the challenge to the proceedings of the complaint case has been raised after more than six years from the date of the passing of the summoning order dated 04.06.2011. Therefore, the application is hopelessly barred by limitation in that regard. There is no explanation offered explaining the laches in filing the present application after such a long period. Secondly, the discharge was claimed by the applicants primarily on the ground that the liability arising out of under the disputed cheque has already been satisfied. However the aforesaid objection taken before the court below could not be successfully established before this Court. Apart from the above, as per the recital contained in paragraph 6 of the discharge application, various other grounds were urged. However, no ground was pleaded in the discharge application that the applicant no.1 is the Chairman of the Company and the applicant no.2 was a Director and not involved in the day to day affairs of the Company. Therefore, the ground on which the impugned order is sought to be assailed before this Court was not pleaded before the court below. In paragraph 27 of the affidavit filed in support of the application, it has been pleaded that the applicants are not responsible for managing the day to day affairs of the company. However, the averments so made in paragraph 27 of the affidavit have not been substantiated by any material facts nor evidenced by any document appended alongwith the affidavit. Consequently, such a factual averment is liable to be ignored by this Court. However, it is left open to the applicants to raise all such pleas as may be available in law and fact before the court below.
For all the reasons given herein above, the present Criminal Misc. Application fails. It is accordingly dismissed.
Order Date :- 27.4.2018 YK