# Devendra Kumar Garg v. State of U.P. & Anr

- **Citation:** (2020) 6 ILRA 80
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-19
- **Case number:** Application U/S 482 No. 1726 of 2016
- **Bench:** Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/devendra-kumar-garg-v-state-of-u-p-anr-45798
- **Pages:** 5

## Headnote

Civil Law - Negotiable Instruments Act,
1881 - Section 138, 141 - Offences by
companies - for maintaining the prosecution
under section 141 of the N.I. Act arraigning of a
company as an accused is imperative - In
absence of the company being arraigned as an
accused a complaint is not maintainable
Notice as well as the complaint u/s 138 N.I. Act
was filed against the applicant, who was
Director of Firm, in his individual capacity -
6 All. Devendra Kumar Garg Vs. State of U.P. & Anr.
81
Company was not arrayed as a party neither in
the notice nor in the complaint - Held - for
maintaining the prosecution under Section 141
of the Act, arraigning of a company as an
accused is imperative - since company was not
arraigned as an accused (Para 8,9)

Application dismissed. (E-5)

List of case cited:-

## Text

80 INDIAN LAW REPORTS ALLAHABAD SERIES
District levels, respectively. (Rule 9 and
10).

(vi) Provision of relief in cash or
kind or both to victims of atrocities as per
prescribed norms within seven days. (Rule
12 (4) and Schedule).

(vii)
State
Government/Union
Territory
Administration
to
provide
necessary authorization and powers to the
District
Magistrate
for
immediate
withdrawal of money from treasury so as to
timely provide the relief amount to atrocity
victims (Rule 12(4A).

(viii) State Level Vigilance and
Monitoring Committee under the Chief
Minister to meet at least twice a year (Rule
16).

(ix) District Level Vigilance and
Monitoring Committees under the District
Magistrate to meet at least once every
quarter (Rule 17).

(x)
Sub-Divisional
Level
Vigilance and Monitoring under the SubDivisional Magistrate to meet at least once
every quarter (Rule 17 A)."

13. It is apparent from the said report that
the main aim for introducing the amendment was
to ensure expeditious disposal of offences
pertaining to this Act, hence keeping in mind the
said aim, the amendment has been incorporated
in the said Act conferring upon Special Judge
power to directly try the case and not wait for the
commitment of the case to it because that would
result in delay. A deeper scrutiny of entire report
which is too long, would indicate that whatever
data has been collected with respect to pendency
and disposal of cases pertaining to SC/ST Act,
also included the cases under SC/ST Act coupled
with the offence falling under IPC, therefore, it
appears that the intention of the legislature would
have been, while passing the Act, to ensure that
even if an offence is found to have been
committed under IPC as well as under SC/ST
Act, the same should be tried by one court only
i.e. Special Court which has been conferred the
power of taking cognizance directly to minimize
the delay in disposal of the case, therefore, I am
of the view that in the present case the
cognizance which has been taken by the trial
court directly under the above-mentioned
sections, does not suffer from any infirmity and
the objection raised by the learned counsel for
the applicant is not found to have any force.

14. In view of the aforesaid, the application
deserves to be dismissed and is accordingly
dismissed.
----------
(2020)06ILR A80
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.02.2020

BEFORE
THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Application U/S 482 No. 1726 of 2016

Devendra Kumar Garg ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Amit Daga

Counsel for the Opposite Parties:
A.G.A., Sri Pankaj Bharti, Sri Ajay Kumar
Sharma

Civil Law - Negotiable Instruments Act,
1881 - Section 138, 141 - Offences by
companies - for maintaining the prosecution
under section 141 of the N.I. Act arraigning of a
company as an accused is imperative - In
absence of the company being arraigned as an
accused a complaint is not maintainable
Notice as well as the complaint u/s 138 N.I. Act
was filed against the applicant, who was
Director of Firm, in his individual capacity -
6 All. Devendra Kumar Garg Vs. State of U.P. & Anr.
81
Company was not arrayed as a party neither in
the notice nor in the complaint - Held - for
maintaining the prosecution under Section 141
of the Act, arraigning of a company as an
accused is imperative - since company was not
arraigned as an accused (Para 8,9)

Application dismissed. (E-5)

List of case cited:-

1. Aneeta Hada Vs Godfather Travels & Tours
Pvt. Ltd. (2012) 5 SCC 661

2. Himanshu Vs B.Shivamurthy & anr. (2019) 3
SCC 797

(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

1. The present application under
Section 482 Cr.P.C. has been filed by the
applicant seeking following relief:

"quashing
the
order
dated
17.7.2013 passed by A.C.J.M., Court No.2,
Muzaffarnagar in Criminal Complaint
Case No.152/9 of 2013, "Pawan Kumar
Goel Vs. Devendra Kumar Garg" and order
dated 05.12.2015 passed by learned
Additional Sessions Judge, Court no.10,
Muzaffarnagar inCriminal Revision No.290
of 2013, 'Devendra Kumar Garg Vs. Pawan
Kumar Goel', as well as the entire
proceedings of Criminal Complaint Case
No.152/9 of 2013, 'Pawan Kumar Goel Vs.
Devendra Kumar Garg' under Section 138
of N.I.Act, Police Station-Civil Lines,
District-Muzaffarnagar, presently pending
before the Court of learned A.C.J.M. IInd,
Muzaffarnagar."

2. Heard Shri. Amit Daga, learned
counsel for the applicant, Shri. Ajay Kumar
Sharma, learned counsel appearing on
behalf of the State O.P. No.2 is represented
through his counsel Shri. Pankaj Bharti, but
none appeared on his behalf even in the
revised call and the judgment was reserved.

3. The facts as narrated in the
application are as follows:

(i) The O.P. No.2 filed a criminal
complaint against the applicant under Section
138 of the N.I. Act before the Court of learned
Additional Chief Judicial Magistrate, Court
No.II, Muzaffarnagar, on 28.1.2013. In the
complaint it was alleged that the complainant's
firm indulged in the business of Machineries
and the accused/applicant was running a
chemical factory in the name and style "Ravi
Organics Ltd." It was further alleged that during
the course of transaction, accused applicant
being director of his firm issued one cheque
bearing No.802275 dated 31.10.2012 of Rs.10
lakhs payable at Union Bank of India, Muzaffar
Nagar. It was further alleged in the complaint
that the said cheque was deposited in the
complainant's bank at State Bank of Patiala
Court Road, Muzaffarnagar for encashment
however, the same was returned by the bankers
of the accused applicant with an endorsement
"Exceeds Arrangement." It was further alleged
that complainant sent one registered legal
demand notice to the applicant on 29.12.2012
through registered post however, when the
amount was not paid, the aforesaid complaint
was filed.

(ii) On the basis of the complaint as
well as other materials on record, the learned
Magistrate took cognizance and called the
complainant to record his statement under
Section 200 Cr.P.C. The complainant filed the
statement by way of an affidavit. On the basis
of materials available on record, the learned
A.C.J.M. Court No.II, Muzaffarnagar took
cognizance by order dated 17.7.2013.

(iii) The applicant being aggrieved
by the summoning order dated 17.7.2013
preferred a Criminal Revision No.290 of 2013,
82 INDIAN LAW REPORTS ALLAHABAD SERIES
before
the
Additional
Sessions
Judge,
Muzaffarnagar which was dismissed by the
learned Sessions Court on 17.7.2013. The
applicant
thereafter
preferred
present
application for quashing of the order dated
17.7.2013 as well as the order dated
05.12.2015.

(iv) Shri. Pankaj Bharti has filed
his Vakalatnama on behalf of O.P. No.2 on
22.1.206 however, no counter affidavit was
filed despite the matter was listed on many
occasions as well as counsel was not even
present when judgment was reserved on
07.2.2020.

(v)
This
Court
passed
the
following order on 05.12.2016:

"Heard learned counsel for the
applicant,
learned
counsel
for
the
complainant as well as learned A.G.A. for
the State and perused the record.

This application under Section
482 Cr.P.C. has been filed by the applicant
with the prayer to quash the order dated
17.07.2013 passed by Additional Chief
Judicial
Magistrate,
Court
No.
2,
Muzaffarnagar in Criminal Complaint
Case No. 152/9 of 2013, and order dated
05.12.2015 passed by Additional Sessions
Judge, Court No. 10, Muzaffarnagar in
Criminal Revision No. 290 of 2013, under
Section 138 of Negotiable Instrument Act,
Police
Station
Civil
Lines,
District
Muzaffarnagar.

Submission of the learned counsel
for the applicant is that complaint has been
filed without making party to the company
though complainant case is that cheque in
question had been issued by the applicant
in capacity of the director of Ravi Organics
Limited. At this stage learned counsel for
the applicant placed reliance on the
following case laws.

I. S.M.S. Pharmaceuticals Ltd.
Vs. Neeta Bhalla and another (2005)8
Supreme Court Cases 89.

II. Yogendra Kumar Khullar @
Bittoo Vs. State of U.P. and another 2012
(79) ACC 789.

III. Anita Hada Vs. Godfather
Travels and Tours Private Limited (2012) 5
Supreme Court Cases 661.

Learned A.G.A.
as
well
as
learned counsel for the complainant argued
that non-bailable warrant has been issued
in the matter. Applicant is authorized
signatory hence complaint can go on.

Having heard the learned counsel
for the parties and in view of the law laid
down in Anita Hada (supra), Yogendra
Kumar Khullar@ Bittoo (supra) and S.M.S.
Pharmaceuticals
Ltd.
(supra),
matter
requires thorough consideration.

Learned AGA has accepted notice
on behalf of the opposite party no.1.

Issue notice to opposite party no.
2.

Steps be taken by Registered Post
A.D. within a week.

All the opposite parties may file
counter
affidavit
within
four
weeks.
Rejoinder affidavit may be filed within two
weeks thereafter.

List on 25.04.2016 before the
appropriate Bench.

Till the next date of listing,
further
proceedings
of
the
aforesaid
complaint case shall remain stayed only
against the applicant."

4. Shri. Amit Daga, learned
counsel appearing on behalf of the
applicant
submitted
that
if
any
complaint under Section 138 of the N.I.
Act is filed in respect of dishonour of
cheque issued from the account of a
Company, it is incumbent on the part of
the complainant to make necessary
averments in the complaint that at the
time when offence was committed, the
person accused was incharge and was
6 All. Devendra Kumar Garg Vs. State of U.P. & Anr.
83
responsible
for
the
conduct
and
business of the Company. However, in
the complaint in question, the company
was not made a party as an accused. He
further submitted that it is settled
position of law that for maintaining the
prosecution under Section 141 of the
N.I. Act arraigning of a company as an
accused is imperative. In support of his
submission he relied upon a judgment
of three Judges of the Apex Court in
Aneeta Hada Vs. Godfather Travels
and Tours Private Limited (2012) 5
SCC
661.
He
further
relied
on
paragraph nos.58 and 59 of the said
judgment.

"58. Applying the doctrine of strict
construction, we are of the considered
opinion that commission of offence by the
company is an express condition precedent to
attract the vicarious liability of others. Thus,
the words "as well as the company"
appearing in the section make it absolutely
unmistakably clear that when the company
can be prosecuted, then only the persons
mentioned in the other categories could be
vicariously liable for the offence subject to
the averments in the petition and proof
thereof. One cannot be oblivious of the fact
that the company is a juristic person and it
has its own respectability. If a finding is
recorded against it, it would create a
concavity in its reputation. There can be
situations when the corporate reputation is
affected when a Director is indicted.

59. In view of our aforesaid
analysis, we arrive at the irresistible
conclusion
that
for
maintaining
the
prosecution under Section 141 of the Act,
arraigning of a company as an accused is
imperative. The other categories of offenders
can only be brought in the dragnet on the
touchstone of vicarious liability as the same
has been stipulated in the provision itself. We
say so on the basis of the ratio laid down in
State of Madras v. C.V. Parekh (1970) 3 SCC
491, which is a three-Judge Bench decision.
Thus, the view expressed in Sheoratan
Agarwal v. State of M.P. does not correctly
lay down the law and, accordingly, is hereby
overruled. The decision in Anil Hada v.
Indian Acrylic Ltd, (2000) 1 SCC 1 is
overruled with the qualifier as stated in
paragraph 51. The decision in U.P. Pollution
Control Board v. Modi Distillery, (1987) 3
SCC 684 has to be treated to be restricted to
its own facts as has been explained by us
hereinabove." (Emphasis supplied)

5. He further relied upon a recent
judgment in Himanshu Vs. B.Shivamurthy
& Anr,2019 (3) SCC 797, wherein in paras
12, 13 and 14 it has been held that:

"12.The provisions of Section 141
postulate that if the person committing an
offence under Section 138 is a company,
every person, who at the time when the
offence was committed was in charge of or
was responsible to the company for the
conduct of the business of the company as
well as the company, shall be deemed to be
guilty of the offence and shall be liable to
be proceeded against and punished.

13. In the absence of the company
being arraigned as an accused, a complaint
against the appellant was therefore not
maintainable.

The appellant had signed the
cheque as a Director of the company and
for and on its behalf. Moreover, in the
absence of a notice of demand being served
on the company and without compliance
with the proviso to Section 138, the High
Court was in error in holding that the
company could now be arraigned as an
accused.

14. We, accordingly, are of the
view that the High Court was in erorr in
rejecting the petition under Section 482 of
84 INDIAN LAW REPORTS ALLAHABAD SERIES
the CrPC. We hence allow the appeal and
set aside the judgment of the High Court. In
consequence, the complaint, being C.R.P
No.
27/2004
shall
stand
quashed."
(Emphasis supplied)

6. He further relied upon various orders
passed by a co-ordinate bench of this Court
where on the basis of similar contention relief
has been granted to the applicant. Details of said
petitions are as follows: (i) Criminal Misc. Writ
Petition No.25369 of 2013 dated 19.11.2019;
(ii) Criminal Misc. Writ Petition No.24377 of
2013 dated 19.11.2019; (iii) Criminal Misc.
Writ Petition No.24632 of 2013 order dated
19.11.2019; (iv) Criminal Misc. Writ Petition
No.25491 of 2013 order dated 19.11.2019.

7. Shri. Ajay Kumar Sharma, learned
counsel appearing on behalf of the State has not
disputed the legal position as submitted by the
learned counsel for the applicant.

8. From perusal of the contents of the
notice and complaint, it is evident that the
notice as well as the complaint was filed against
the applicant in his individual capacity.
Company was not arrayed as a party neither in
the notice nor in the complaint. Hon'ble Apex
Court in the case of Aneeta Hada (supra) has
held that for maintaining the prosecution under
Section 141 of the Act, arraigning of a company
as an accused is imperative.

9. Judgment passed in Aneeta Hada
(supra) is also followed in the case of
Himanshu (supra), wherein the Apex Court
has dismissed the complaint, since company
was not arraigned as an accused. Present case is
squarely covered by the judgment passed in
Aneeta Hada (supra) and Himanshu (supra).

10. In view of the above discussions, this
application is allowed and the order dated
17.7.2013 passed by A.C.J.M., Court No.2,
Muzaffarnagar in Criminal Complaint Case
No.152/9 of 2013, "Pawan Kumar Goel Vs.
Devendra Kumar Garg" and order dated
05.12.2015 passed by learned Additional
Sessions Judge, Court no.10, Muzaffarnagar in
Criminal Revision No.290 of 2013, 'Devendra
Kumar Garg Vs. Pawan Kumar Goel', as well
as the entire proceedings of Criminal Complaint
Case No.152/9 of 2013, 'Pawan Kumar Goel
Vs. Devendra Kumar Garg' under Section 138
of N.I.Act, Police Station-Civil Lines, DistrictMuzaffarnagar, presently pending before the
Court of learned A.C.J.M. IInd, Muzaffarnagar
are hereby quashed.
----------
(2020)06ILR A84
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.02.2020

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Application U/S 482 No. 2331 of 2020

Anoop Keshari @ Anoop Chowdhary
 ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Vimlendu Tripathi

Counsel for the Opposite Parties:
A.G.A., Sri Ram Vishal Mishra

A. Criminal Law - Criminal Procedure Code
(2 of 1974) - Section 145 - Section 145 -
deals with dispute concerning land likely to
cause breach of peace - however dispute
regarding office of Management of the Society,
registered under Societies Registration Act,
cannot be held
as a dispute regarding
ownership
and
possession
of
immovable
property
-
Executive
Magistrate
has
no
jurisdiction to decide such dispute u/s 145 CrPC

Immovable property in dispute was a Arya
Samaj
Temple,
a
property
of
religious