Court No. - 64
Case :- APPLICATION U/S 482 No. - 21653 of 2019 Applicant :- Vivek Gaur Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Nitin Sharma Counsel for Opposite Party :- G.A.
Hon'ble Arvind Kumar Mishra-I,J.
Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.
Primary urge is that it is a company transaction and the proceeding under Section 138 of the N.I. Act has been initiated casually without complying the mandate of law and the law settled position of law laid down in the various cases by the Hon'ble Apex Court as well as this High Court and other High Courts in India. Applicant happens to be one of the directors of M/s Vas Data Services Pvt. Ltd. at Gurgaon (Haryana) and he in his official capacity as director issued the cheque in question. On that count only, the applicant cannot be proceeded without the company being impleaded as the necessary party and in the absence of impleadment of the company as a party, the proceeding initiated against the applicant is vitiated in law. In support of his claim, learned counsel for the applicant has placed reliance on the decision of the Hon'ble Apex Court in the case of Himanshu versus B. Shivamurthy & Anr. passed in Criminal Appeal No.1465 of 2009, decided on 17.1.2019.
Also heard the learned A.G.A.
The submission is absolutely correct. If the transaction is by a company and the cheque was issued out of that transaction, then the official who issued cheque would not be accountable singly in the absence of the company being impleaded as party to the complaint. Here, the case set up by the applicant is that the company was not impleaded as a party and the action was initiated against the applicant alone, which is not permissible under law.
Apart from that, it has also been claimed that there are various defects in the issuance of notice/summon to the applicant on account of fact that the notice send by opposite party no.2 was not proper and legally sustainable, even then the court below overlooking that vital aspect has summoned the applicant, vide its order dated 03.01.2018.
Also considered the submission and also perused the record. Obviously, the law point involved is very much sustained. If the transaction is claimed to be arising out of a transaction between opposite party no.2 and the company of applicant no.1, wherein the applicant is one of the directors of the company, then the company in question ought to have been impleaded as necessary party and in the absence of the impleadment of company as necessary party, no proceeding can be initiated against the applicant, by virtue of he being director of the company.
However, it was always open and is still open to the opposite party no.2 to have moved proper application or to have got impleaded the company and then to have proceeded further in accordance with law and the court below was within its right to have initiated action and to have taken cognizance only after the company was impleaded as necessary party, but in this case proceeding de novo against the applicant, he being director is illegal and ex-facie not sustainable. Consequently, the order dated 15.12.2017 being erroneous can not stand test of judicial scrutiny.
The submission made by learned counsel for the applicant prima facie appears to have some substance. The matter requires consideration after receiving response from opposite parties.
Learned A.G.A. has accepted notice on behalf of opposite party no.1. He prays for and is granted four weeks' time to file counter affidavit.
Issue notice to opposite party no.2 who may file counter affidavit within the same period.
Rejoinder affidavit, if any, may be filed within two weeks thereafter.
List this case after expiry of the aforesaid period.
Till the next date of listing, further proceeding in Complaint Case No.5299 of 2017 (7428 of 2017), Rohit Katyal vs. Vivek Gaur and another, under Section 138 N.I. Act, Police Station Hariparvat, District Agra, pending in the court of A.C.J.M.-I, Agra shall remain stayed.
The principles of aforesaid citation are also very much applicable, so far as the law point raised before this Court is concerned.
Order Date :- 30.5.2019 Raj