Court No. - 44
Case :- APPLICATION U/S 482 No. - 13289 of 2018 Applicant :- Smt. Madhurani Opposite Party :- State Of U.P And Another Counsel for Applicant :- Mohit Singh Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Mohit Singh, learned counsel for the applicant and the learned A.G.A. for the State.
This application under Section 482 Cr.P.C. has been filed challenging the summoning order dated 9.2.2018, passed by the Additional Court, Judicial Magistrate, Court No.6, Aligarh in Complaint Case No. 1462 of 2017 (Harishchandra Vs. Smt. Madhurani) under sections 138 N.I. Act, Police Station Jawan, District Aligarh as well as the entire proceedings of the above mentioned complaint case.
From the record, it appears that the applicant gave a cheque dated 16.11.2017 valued at Rs. 7,00,000/- to the opposite party No.2. The said cheque was dishonoured on 18.11.2017. Consequently, the opposite party No.2 gave a legal notice dated 29.11.2017 to the applicant for payment of the amount payable under the disputed cheque. However, in spite of the notice the amount payable under the disputed cheque was not paid. Accordingly, the complainant/opposite party no.2 herein filed the above mentioned complaint case. The court below by means of the order dated 9.2.2018, summoned the applicant under section 138 N.I Act. Feeling aggrieved by the summoning order dated 9.2.2018, as well as the entire proceedings of the complaint case referred to above, the applicant has come to this court by means of the present application under section 482 Cr.P.C.
Learned counsel for the applicant in challenge to the summoning order dated 9.2.2018, invited the attention of the court to the averments made in paragraphs 13 and 17 of the affidavit. On the basis of the averments made in the aforesaid paragraphs, he submits that the disputed cheque has not been issued in the discharge of a legal debt, but the cheque has been misused for which proceedings under section 156 (3) Cr.P.C were initiated and final order has been passed. However, the copy of the final order alleged to have been passed, has neither been annexed along with the application nor the contents of the same have been detailed. In the absence of the above, it is difficult to appreciate the submission of the learned counsel for the applicant. It was next contended that the proceedings under section 138 of the N.I. Act cannot continue against the applicant without impleading the firm as one of the accused. He further submits that in the absence of the firm being impleaded as a party or being summoned by the court, no effective adjudication can be made by the court below. The submission so made is wholly misconceived. From the perusal of the complaint, copy of which has been appended as Annexure-1 to the affidavit, it is apparent that the firm M./s Baghel Enterprises has been impleaded as the opposite party no.2, whereas the applicant Smt. Madhu Rani Baghel has been impleaded as the opposite party no. 1. The applicant Smt. Madhu Rani Baghel has been duly described as the proprietor and the authorized signatory of the firm. This description of the applicant no. 1 as occurring in the complaint has not been challenged in the present proceedings under section 482 Cr.P.C. Thus, the complainant had not sent the notice to the company before filing of the complaint but to the opposite party no.1 in the complaint namely, Smt. Madhu Rani Baghel, who is the Director as well as authorized signatory of the company and had also issued the disputed cheque on behalf of the company. So, the notice sent by non-applicant No.1 to applicant No.1 Manish Kalani is also notice to the company as held by the Hon'ble Apex Court in the case of M/s Bilakchand Gyanchand Co. Vs. A. Chinnaswmi, reported in AIR 1999 SC 2182 wherein Hon'ble Apex Court held that notice under Section 138 of the Act sent to the Managing Director of the Company who is signatory of the cheque in question, the complaint is not liable to be quashed on the ground that the notice was not served upon the company. Similarly, Hon'ble Apex Court in the case of Rajneesh Agrawal Vs. Amit J. Bhalla, reported in AIR 2001 SC 518 also held that demand notice issued in the name of Director, who has signed the cheque is notice to the drawer Company, therefore the prosecution of non-appliant No.2 Company for the offence under Section 138 of the Act would not be invalid for the reason that the noice was not served upon the Company. By means of the summoning order, the court below summoned the applicant no.1 which will also include the summoning of the firm as the firm is represented by the present applicant.
In view of the above, no case for interference is made out. The application fails and is, accordingly, dismissed.
Order Date :- 27.4.2018 Arshad