Allowed

Neeraj Mishra and Another v. State of U.P. and Another

Allahabad HC21 Nov 2024A482/25465/2024

Case brief

AI extract

What is this about?

The High Court set aside summoning orders against partners in a cheque bounce case where only the firm was impleaded as the accused. Relying on precedent, it directed that notice be issued to the firm through its principal officer or partner, not to partners personally.

What did the court decide?

Quashed the summoning order and the revisional order upholding it; directed the trial court to summon the concerned firm.

Neeraj Mishra and Another vs State of U.P. and Another — Cheque Dishonour | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:181970

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Court No. - 79

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Case :- APPLICATION U/S 482 No. - 25465 of 2024

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Applicant :- Neeraj Mishra And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Srijan Pandey,Swetashwa Agarwal,Vinod Shankar Tripathi Counsel for Opposite Party :- G.A.

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Hon'ble Arun Kumar Singh Deshwal,J.

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Heard Sri Swetashwa Agarwal along with Sri Vinod Shankar Tripathi, learned counsel for the applicants and Sri Brijesh Kumar Dwivedi, learned AGA for the State.

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The present 482 Cr.P.C. application has been filed for the following relief:

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"It is therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to allow the present Application U/s 482 Cr.P.C. and quash the entire criminal proceedings of Complaint Case No.60/ 2023- Sukhchain Singh vs. M/s Shri Siddha Baba Enterprises, u/s 138 Ν.Ι. Act, P.S. Cantt. District- Bareilly, pending before the Court of Ld. Judicial Magistrate, Court No.1, Bareilly as well as impugned summoning order dated 05.04.2024 passed by Ld. Judicial Magistrate Court no. 1, Bareilly, whereby the Applicants have been summoned to face trial for the offence u/s 138 Negotiable Instruments Act, 1881 and the impugned revisional order dated 06.03.2024 passed by Ld. Additional Sessions Judge - II, Bareilly, whereby the veracity of the afore-said summoning order has been upheld.

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It is also prayed that this Hon'ble Court may kindly be pleased to stay further proceedings of Complaint Case No.60/ 2023- Sukhchain Singh vs. M/s Shri Siddha Baba Enterprises u/s 138 N.I. Act, P.S. Cantt. District- Bareilly, pending before the Court of Ld. Judicial Magistrate, Court No.1, Bareilly, during the pendency of the present Application U/s 482 Cr.P.C. before this Hon'ble Court, and/or pass such other and further order which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case."

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Sole contention of learned counsel for the applicants is that admittedly as per the complaint, cheque in question was issued on behalf of the firm-Shri Siddha Baba Enterprises and firm was impleaded as a party in the complaint. In the impugned complaint, though the present applicants were shown as partners in Shri Siddha Baba Enterprises but not impleaded vicariously as a partner, even then the court below has summoned the applicants personally.

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It is further submitted that this court in the case of M/s Parthas Textiles & Another Vs. State of U.P. & Another in Application u/s 482 No.11672

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of 2024 , clearly observed that when the firm is made as a party in the complaint u/s 138 of the Negotiable Instruments Act, 1881 then the notice has to be issued to the firm through its principal officer or local manager or partner but cannot be issued personally to its partner.

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Per contra , learned AGA has submitted that there is no illegality in the impugned summoning order as the cheque in question was signed by the applicants on behalf of the firm, therefore, both the applicants are also personally liable.

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After hearing the rival submission of parties and on the perusal of record, it appears that it is undisputed that the firm was impleaded as a party and applicants were not impleaded personally as a partner of the firm. Therefore, in view of the judgement of this court in the case of Parthas Textiles (supra) , notice has to be served to the concerned firm through its partner and not to the partner in person. Paragraph nos.15, 22, 23 and 24 of the said judgement is being quoted as under:

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“ 15. Therefore, from the conjoint reading of Section 141 N.I. Act, Section 63 of Cr.P.C. and Section 305 Cr.P.C., it is explicit that whenever a company is accused under Section 138 N.I. Act then summons has to be issued in the name of the company and service of the same can be effected by serving it on the Principal Officer or Local Manager of the Company .

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22 . From the above analysis, it is clear that if a company is arraigned as accused in a complaint, then summons ought to be issued to the company through its Principal Officer or Local Manager as mentioned in Section 63 Cr.P.C and after service of summons upon the company, as per Section 63 Cr.P.C., the company can appoint any of his representatives as per Section 305 Cr.P.C. and when the representative of the company appears before the court, the proceeding before him would be deemed to be the proceeding in the presence of the accused and representative will be examined on behalf of the company. Representative of the company is not required to seek bail on behalf of the company as the company can change its representative at any stage of proceeding with the permission of the Court concerned.

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23. Service of summons upon the company can be made as per the mode provided under Section 144 N.I. Act, which provides that service of summons can be made on accused by speed post or courier service approved by the Court, where he carries on business or personally works for gain. Therefore, there is no requirement to send a summons to the registered office of the company or firm. It can be served to its local manager, who carries on with the business of the corporate body.

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24. In the present case, though the Firm (M/S Partha Textiles) was arrayed as

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an accused, but a summons was issued to its partner (applicant no.2) personally, which is not a proper service for the firm because the partner was not impleaded as accused in the impugned complaint. As the issue is purely technical, therefore, this petition is being finally disposed of without hearing the opposite party no.2.”

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In the case of Parthas Textiles (supra) , similar controversy arises where summons was issued to the partner instead of firm, though the partner was not impleaded as a party. This court after quashing the summons against the partner permitted the court to pass fresh order against the concerned firm through its partner or principal officer.

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In the present case, purely technical issue has arisen, therefore, without issuing notice to opposite party no.2, this court is allowing the present application on technical ground that if partner is not impleaded as a party individually then notice to the firm should be issued to the firm through its principal officer or partner and not to the partner individually.

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In view of the above, the order dated 05.04.2023 passed by the learned Judicial Magistrate, Court No.1, Bareilly as well as order dated 06.03.2024 passed by learned Additional Sessions Judge-II, Bareilly, are hereby setaside and court below is directed to pass fresh order, in accordance with law to summon the concerned firm.

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Accordingly, the present application is allowed .

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Order Date :- 21.11.2024 S.Chaurasia

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Digitally signed by :- SHUBHAM CHAURASIA High Court of Judicature at Allahabad

Neeraj Mishra and Another v. State of U.P. and Another

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Neeraj Mishra and Another v. State of U.P. and Another

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