# Jitendra Mangala v. State of U.P. & Anr

- **Citation:** (2024) 5 ILRA 2427
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-22
- **Case number:** Application U/S 482. No. 6343 of 2024
- **Bench:** Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jitendra-mangala-v-state-of-u-p-anr-52092
- **Pages:** 4

## Headnote

A. Criminal Law-Criminal Procedure Code,
1973-Section
482-Negotiable
Instruments
Act
1881-Section
138quashing of entire proceedings-the case
involved a cheque issued on behalf of one
M/s
Prerna
Construction,
but
the
complaint named only the applicant, the
proprietor
of
the
company,
without
impleading the company itself as an
accused-section 141 of the NI Act
requires the company to be impleaded
when a cheque is issued on its behalfsince the company was not made a party
in the complaint the proceedings were
defective-The
court
quashed
the
complaint as they were not maintainable
due to non-impleading of the companyHowever, the court permitted the opposite
party to file a fresh complaint within one
month,
properly
impleading
the
company.(Para 1 to 14)

The application is allowed. (E-6)

List of Cases cited:

## Text

5 All. Jitendra Mangala Vs. State of U.P. & Anr.
2427
Manoharan Case (Supra), Veerendra
Case (Supra), Anand Kindo & Another
Case (Supra), Ravindar Singh Case
(Supra), Digambar's Case (Supra) and
Bhaggi @ Bhagirah @ Naran's Case
(Supra) that if the Court is inclined to
award death penalty, there must be
exceptional
circumstance
warranting
imposition of excess penalty which cannot
be reversed.

99. Therefore, finding that the case
of the appellants can not be termed as
"rarest of rare" case even though accused
has committed a grave offence, we are of
the
opinion
that
capital
punishment
awarded to both the appellants should be
commuted to life imprisonment for a fixed
term of 20 years.

100.

With
the
aforesaid
modification, the appeal qua conviction is
dismissed. However, the appeal qua
sentence is modified.

101. The accused-appellants are
already in custody. They will undergo the
remaining sentence in accordance with law.

102. Record and proceedings be
sent back to the Trial Court forthwith.
----------
(2024) 5 ILRA 2427
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.05.2024

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Application U/S 482. No. 6343 of 2024

Jitendra Mangala ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties
Counsel for the Applicant:
Bhuvnesh Kumar Singh, Sangeeta Shukla

Counsel for the Opposite Parties:
G.A., Sushil Kumar Chaturvedi

A. Criminal Law-Criminal Procedure Code,
1973-Section
482-Negotiable
Instruments
Act
1881-Section
138quashing of entire proceedings-the case
involved a cheque issued on behalf of one
M/s
Prerna
Construction,
but
the
complaint named only the applicant, the
proprietor
of
the
company,
without
impleading the company itself as an
accused-section 141 of the NI Act
requires the company to be impleaded
when a cheque is issued on its behalfsince the company was not made a party
in the complaint the proceedings were
defective-The
court
quashed
the
complaint as they were not maintainable
due to non-impleading of the companyHowever, the court permitted the opposite
party to file a fresh complaint within one
month,
properly
impleading
the
company.(Para 1 to 14)

The application is allowed. (E-6)

List of Cases cited:

1. Himanshu Vs B. Shivamurthi & anr.(2019) 3
SCC 797

2. Aneeta Hada Vs M/S God Father Travels &
Tours Pvt Ltd (2012) 5 SCC 661

3. Dilip Hariramani Vs Bank of Baroda (2022)
Live Law SC 457 N. Harihare Krishnan Vs J.
Thomas (2018) 3 SCC 663

(Delivered by Hon'ble Arun Kumar Singh
Deshwal, J.)

1. Heard Sri Bhuvnesh Kr. Singh,
learned counsel for the applicant, Sri Sushil
Kr. Chaturvedi, learned counsel for
opposite party No.2 and Sri Rajeev Kr.
Singh, learned A.G.A. for the State.
2428 INDIAN LAW REPORTS ALLAHABAD SERIES
2. The instant application has been
filed seeking quashing of entire proceeding
of Complaint Case No. 14 of 2018 (Smt.
Manju Sharma vs. Jitendra Mangala), u/s
138 N.I. Act, P.S. Tajganj, District Agra,
pending before the Additional Court No.1,
Agra as well as summoning order dated
1.9.2018.

3. The factual matrix giving rise to
the present case are that the complaint was
filed by opposite party No.2 against the
applicant u/s 138 N.I. Act. In the aforesaid
complaint, it was mentioned that cheque
was issued by M/s Prerana Construction
Pvt. Ltd., but only the present applicant
who is the proprietor of the company M/s
Prerana
Construction
Pvt.
Ltd.
was
impleaded as accused. The court below
after perusal of the record, summoned the
present applicant by summoning order
dated 1.9.2018 and by way of present
application, the proceeding of aforesaid
complaint case is under challenge.

4. Learned counsel for the
applicant submits that it is undisputed that
the cheque in question was issued on behalf
of the company M/s Prerana Construction
Pvt. Ltd., but while filing the impugned
complaint, the company in question was not
impleaded as accused. Therefore, the
proceeding cannot be proceeded against the
accused who is the proprietor of the
company who is vicariously liable only
when the company is impleaded as a party
in the complaint. Therefore, the impugned
complaint is barred by Section 141 N.I.
Act. Learned counsel for the applicant also
argued that in case paragraphs No. 6 of 13
of Himanshu vs. B. Shivamurthi and
another; (2019) 3 SCC 797, Hon'ble Apex
Court observed that the complaint, in
absence of the company, is defective and at
this stage company cannot be arrayed.
Therefore, fresh complaint is also barred
because fresh notice is required to be given
to the company which is necessary for
arising of the cause of action.

5. per contra learned counsel for
opposite party No.2 and learned A.G.A.
submitted that the cheque in question was
issued on behalf of the company by the
applicant, therefore, he is personally liable,
therefore, there is no illegality in the
summoning order and the impugned
proceeding.

6.

Considering
the
rival
submissions of the parties and on perusal of
the record, it appears that the cheque in
question was issued on behalf of the
company M/s Prerana Construction Pvt.
Ltd. to opposite party No.2, but while filing
the impugned complaint, opposite party
No.2 did not implead the company as
accused which is the basic requirement u/s
141 N.I. Act.

7. The Apex Court also in the cases
of Aneeta Hada vs. M/S God Father
Travels and Tours Pvt. Ltd.; (2012) 5 SCC
661, Himanshu vs. B. Shivamurthi and
another; (2019) 3 SCC 797, Dilip
Hariramani vs. Bank of Baroda; 2022
LiveLaw (SC) 457 as well as N. Harihara
Krishnan vs. J. Thomas 2018 (3) SCC 663
observed that without impleading the body
corporate which includes the company
itself, proceeding u/s 141 N.I. Act cannot
be proceeded.

8. So far as the contention of
learned counsel for the applicant that fresh
complaint after impleading the company is
also barred because Hon'ble Apex Court in
the case of Himanshu vs. B. Shivamurthi
(supra) has observed that in absence of
notice of demand, being served on the
5 All. Jitendra Mangala Vs. State of U.P. & Anr.
2429
company, the company cannot be arrayed
as accused, is concerned, in the case of
Himanshu vs. B. Shivamurthi (supra) the
issue was whether on objection raised by
the accused that company was not
impeaded as party in the complaint filed for
dishonoring of the cheque on behalf of the
company but the High Court has permitted
to implead the company and Hon'ble Court
observed that as the statutory demand
notice was not issued to the company,
therefore, at this stage company cannot be
proceeded by impleading the same in the
complaint. Paragraphs No. 6, 11 & 13 of the
Himanshu vs. B. Shivamurthi (supra) are
being quoted as under:-

 "6. The judgment of the High
Court has been questioned on two grounds.
The learned counsel appearing on behalf of
the appellant submits that firstly, the
appellant could not be prosecuted without
the company being named as an accused.
The cheque was issued by the company and
was signed by the appellant as its Director.
Secondly, it was urged that the observation
of the High Court that the company can
now be proceeded against in the complaint
is misconceived. The learned counsel
submitted that the offence under Section
138 is complete only upon the issuance of a
notice of demand and the failure of payment
within the prescribed period. In absence of
compliance with the requirements of
Section 138, it is asserted, the direction of
the High Court that the company could be
impleaded/arraigned at this stage is
erroneous.

 11. In the present case, the record
before the Court indicates that the cheque
was drawn by the appellant for Lakshmi
Cement and Ceramics Industries Ltd., as its
Director. A notice of demand was served
only on the appellant. The complaint was
lodged only against the appellant without
arraigning the company as an accused.

 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."

9. In the case of Himanshu vs. B.
Shivamurthi (supra) drawer of the cheque
during the pendency of the proceeding
before the Apex Court also deposited the
entire cheque amount showing his bona
fide which was also directed to be paid to
the complainant at the time of disposal of
the case. However, in the present case
situation is totally different. In the
impugned complaint, the applicant was not
impleaded in his personal capacity but was
impleaded as proprietor of the company
M/s Prerana Construction Pvt. Ltd. and
notice was also served upon the company
M/s Prerana Construction Pvt. Ltd. through
the applicant, being its proprietor/executive
director. It is not in dispute that the
applicant is active director of the company
in question as per the allegation of the
complaint and also involved in its day to
day business. Therefore, notice upon the
applicant, being director of the company,
will be deemed to be notice upon the
company itself.

10.
Therefore,
facts
of
the
Himanshu vs. B. Shivamurthi (supra) are
different from the present case. Therefore,
ratio of Himanshu vs. B. Shivamurthi
2430 INDIAN LAW REPORTS ALLAHABAD SERIES
(supra) will not be applied in the present
case. Even otherwise, the applicant can
raise all his defence during trial.

11. Hon'ble Apex Court in the case
of NEPC Micon Ltd. vs. Magma Leasing
Ltd.; 1999 (4) SCC 253, observed that it is
the duty of court to interpret Section 138
N.I. Act consistent with the legislature
intent and purpose so as to suppress the
mischief
and
advance
the
remedy.
Therefore,
second
complaint
by
impleading the company is not barred for
bouncing of the cheque in question issued
by the company M/s Prerana Construction
Pvt. Ltd.

12. Even otherwise, the drawer of
the cheque in the case of Himanshu vs.
B. Shivamurthi (supra) deposited the
cheque amount before Hon'ble Supreme
Court, showing his bone fide. However,
in the present case order sheet shows that
though the complaint was filed in the year
2018, the applicant as well as his
company tried their best to avoid facing
trial, despite issuance of summons and
bailable warrant, therefore, such type of
drawer of cheque should not be allowed
to take benefit of technicality at the cost
of justice.

13. In view of the above legal
position, the present complaint is not
maintainable as the company M/s
Prerana Construction Pvt. Ltd. was not
impleaded as a party. In view of the
above, the proceeding of Complaint
Case No. 14 of 2018 (Smt. Manju
Sharma vs. Jitendra Mangala), u/s 138
N.I. Act, P.S. Tajganj, District Agra is
hereby quashed.

14. Accordingly, the application is
allowed.
15. However, opposite party No.2
is permitted to filed fresh complaint by
impleading the company, namely, M/s
Prerana Construction Pvt. Ltd., within a
period of one month.
----------
(2024) 5 ILRA 2430
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.05.2024
BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE ANISH KUMAR GUPTA, J.

Special Appeal No. 345 of 2024

Ram Pratap Singh ...Appellant
Versus
Union of India & Ors. ...Respondents

Counsel for the Appellant:
Avneesh Tripathi

Counsel for the Respondents:
A.S.G.I., Rohan Gupta

Civil Law - Service Matter- Appellant-
appointed as Junior Engineer (Trainee) on
adhoc basis - for a period of two years -
extended
further
for
six
months
-
Appellant applied again - selected on the
post of Assistant Engineer (Civil) on
regular basis - He was accorded the first
financial upgradation and later on was
promoted to the post of Senior Assistant
Engineer (SG) - Board of Directors had
approved the Recruitment and Promotion
Rules in respect of non-academic staff-
Appellant
claims
that
his
right
to
promotion got affected by the new policy
- represented the matter - Institute Level
Grievance Redressal Committee and the
Board-Sub Committee refused - Appellant
filed Writ - Rejected - Hence, appellant
preferred Special Appeal - Dismissed
(Para - 3,4,5,9,49)

HELD: The suitability for the job, for which the
selection and appointment is to be made, is an