# Mohd. Khalid v. State of U.P. & Anr

- **Citation:** (2025) 3 ILRA 126
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-03-12
- **Case number:** Application U/S 482 No. 13742 of 2021
- **Bench:** Rajiv Gupta, Samit Gopal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-khalid-v-state-of-u-p-anr-53038
- **Pages:** 7

## Headnote

Criminal Law - Criminal Procedure Code,
1973
-
Section

482
-
Negotiable
Instruments Act,1881 - Sections 138 &
142- Application U/s 482 - Larger Bench -
constituted to address whether filing of a
Impleadment application in a complaint filed
under Section 138 of the N.I. Act is valid, if
filed solely against the proprietor without
naming the company as an accused -
Different High Court benches had given
conflicting decisions - The reference arose
due
to
conflicting
High
Court
rulings
interpreting Aneeta Hada v. Godfather
Travels. - Later, the Supreme Court in
Pawan Kumar Goel v. St. of U.P. clarified
that if a company is involved, it must be
named as an accused in the complaint.
Also, once the legal time limit (limitation
period) for taking action under Section 142
is over, no new accused can be added - held
- no additional accused can be impleaded
subsequent to filing of a complaint once the
limitation
prescribed
for
taking
of
cognizance of the offence under section 142
of the NI Act, has expired - hence, the
reference was thus answered - and the
matter will resume before the concerned
Single Judge - Application is pending.
(Para - 9, 10, 11)

Application Pending. (E-11)

List of Cases cited:

## Text

126 INDIAN LAW REPORTS ALLAHABAD SERIES
necessary orders on the application moved
under Order XXI Rule 97 CPC by the
petitioner in accordance with law keeping
in mind the decisions of Apex Court
rendered in cases of Shingara Singh
(Supra), Siddamsetty Infra Projects Pvt.
Ltd. (Supra), Sriram Housing Finance
and
Investment
(Supra),
Silverline
Forum
Pvt.
Ltd.
(Supra)
and
Periyammal (Supra) as well as Rule 102
CPC and considering the doctrine of lis
pendens, within a period of one month
from the date of receipt of a certified copy
of this order.

38. With the aforesaid directions,
writ petition stands disposed of.
----------
(2025) 3 ILRA 126
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.03.2025

BEFORE

THE HON'BLE RAJIV GUPTA, J.
THE HON'BLE SAMIT GOPAL, J.

Application U/S 482 No. 13742 of 2021
With
Application U/S 482 No. 13816 of 2021

Mohd. Khalid ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Ashish Malhotra, Ms. Pushpila Bisht

Counsel for the Opposite Parties:
Sri Ashutosh Upadhyay, Sri Birendra Singh,
Sri Ajay Kumar Singh, G.A.

Criminal Law - Criminal Procedure Code,
1973
-
Section

482
-
Negotiable
Instruments Act,1881 - Sections 138 &
142- Application U/s 482 - Larger Bench -
constituted to address whether filing of a
Impleadment application in a complaint filed
under Section 138 of the N.I. Act is valid, if
filed solely against the proprietor without
naming the company as an accused -
Different High Court benches had given
conflicting decisions - The reference arose
due
to
conflicting
High
Court
rulings
interpreting Aneeta Hada v. Godfather
Travels. - Later, the Supreme Court in
Pawan Kumar Goel v. St. of U.P. clarified
that if a company is involved, it must be
named as an accused in the complaint.
Also, once the legal time limit (limitation
period) for taking action under Section 142
is over, no new accused can be added - held
- no additional accused can be impleaded
subsequent to filing of a complaint once the
limitation
prescribed
for
taking
of
cognizance of the offence under section 142
of the NI Act, has expired - hence, the
reference was thus answered - and the
matter will resume before the concerned
Single Judge - Application is pending.
(Para - 9, 10, 11)

Application Pending. (E-11)

List of Cases cited:

1. Mohd. Khalid Vs St. of U.P. & anr. - Criminal
Misc. Application U/S 482 No. 11600 of 2021
decided on 19.08.2021,

2. Gaurav Sabbarwal Vs St. of U.P. - Criminal
Misc. Application U/S 482 No. 1224 of 2021 -
decided on 19.08.2021,

3. Aneeta Hada Vs Godfather Travels and Tours
Private Limited: (2012) 5 SCC 661,

4. Pawan Kumar Goel Vs St. of U.P. & anr.: 2022
SCC OnLine SC 1598.

(Delivered by Hon'ble Samit Gopal, J.)

1. Heard Ms. Pushpila Bisht and Shri
Ashish Malhotra, learned counsels for the
applicant, Shri Ajay Kumar Singh, Holding
Brief of Shri Birendra Singh, learned
counsel for the O.P. No.2, Shri A.N. Mulla,
Shri Shashi Shekhar Tiwari and Shri
Jitendra Kumar Jaiswal, learned AGAs for
3 All. Mohd. Khalid Vs. State of U.P. & Anr.
127
the State/O.P. No.1 and perused the
records.

2. This matter has been placed
before this Bench through nomination of
this Larger Bench vide order dated
17.05.2024 of Hon'ble The Chief Justice.

3. The issue before the Larger
Bench as has been raised vide order dated
25.11.2021 by learned Single Judge reads
as under:-

 "Written
arguments
filed
on
behalf of applicant is taken on record.

Heard
Shri
Satish
Trivedi,
learned Senior counsel assisted by Shri
Ajay Kumar Pandey and Shri Ashish
Malhotra,
learned
counsel
for
the
applicant, Shri Birendra Singh, learned
Senior advocate assisted by Shri Prashant
Kumar on behalf of opposite party no.2 and
learned A.G.A.

The only legal issue which crops
up for consideration before this Court is
that whether a complaint is maintainable in
the form and style of the present complaint
wherein notice has been issued to the
proprietor of the company and complaint
has been filed against Mohd. Khalid
proprietor of M/s. Plenum Infrastructure
Private Limited without impleading M/s.
Plenum Infrastructure Private Limited as a
party in its capacity of a corporate entity.

On the same controversy two
judgments one delivered by Hon'ble Vivek
Agarwal,J. vide order dated 19.8.2021
which has been corrected vide order dated
17.9.2021 and the second by Hon'ble
Rajeev Misra,J. vide order dated 19.8.2021
and in both the judgments reliance has
been placed upon Aneeta Hada and Others
Vs. Godfather Travels and Tours Private
Ltd. and Others, delivered by a Three
Judges Bench of Supreme Court reported
in (2012) 5 SCC 661. In the aforesaid two
cases Hon'ble Vivek Agarwal, J. quashed
and allowed the application whereas
Hon'ble Rajeev Misra,J. has passed the
following order :-

"15.
Upon
consideration
of
above, this Court could have directed
parties to exchange pleadings and granted
an interim stay of the proceedings.
However,
considering
the
fact
that
complaint was filed in the year 2015 and
the matter has remained pending for more
than six years at initial stage, this court is
of the view that interest of justice shall
better be served in case the defect pointed
out by applicant herein is equitably
considered.
16.
Accordingly,
Cognizance Taking Order as well as
Summoning
Order
dated
23.01.2015
passed by court below is hereby quashed.
Complainant/opposite party-2 shall move
an
impleadment
application
seeking
amendment in the complaint by impleading
the
Company
namely
M/s.
Saksham
Services Pvt. Ltd. as a party in the
complaint and further take necessary steps,
to amend the complaint by way of
amendment. Aforesaid exercise shall be
completed by 30th of October, 2021.
Thereafter, court below shall consider the
complaint and proceed accordingly. "

The issue is whether the filing of
impleadment application can be allowed or
not.

In such circumstances, the matter
is referred to Hon'ble The Chief Justice to
constitute the larger Bench to settle down
the issue.

Till then no coercive action shall
be taken against the applicant."

4. Before the learned Single Judge
two orders were placed of co-ordinate
Benches amongst which one was in
Criminal Misc. Application U/S 482 No.
128 INDIAN LAW REPORTS ALLAHABAD SERIES
11600 of 2021 (Mohd. Khalid Vs. State of
U.P. and Another) on 19.08.2021 which
was subsequently corrected vide order
dated 17.09.2021 and the second was an
order dated 19.08.2021 passed in Criminal
Misc. Application U/S 482 No. 1224 of
2021 (Gaurav Sabbarwal Vs. State of U.P.).
Both the matters relied upon the judgement
of the Apex Court in the case of Aneeta
Hada Vs. Godfather Travels and Tours
Private Limited: (2012) 5 SCC 661 but
vide the former order the petition was
allowed and the proceedings were quashed
keeping the option to the complainant open,
of availing civil remedy for recovery of
debt if so advised whereas vide the latter
order
directions
were
issued
in
its
paragraph 15 & 16 to the effect that the
complainant / opposite party-2 shall move
an
impleadment
application
seeking
amendment in the complaint by impleading
the company as a party in the complaint
and further take necessary steps to amend
the complaint by way of amendment. The
court concerned was directed to consider
the complaint and proceed accordingly.

5. Learned Single Judge ceased
with the present matter after referring to
both the orders culled out the issue which
reads as under:-

"The issue is whether the filing of
impleadment application can be allowed or
not."

6. Thus a reference was made to
Hon'ble The Chief Justice to constitute a
Larger Bench to settle down the issue. The
matter is thus before this Larger Bench on
the aforesaid pretext.

7. The issue thus which arose
before the learned Single Judge in the
present matter for consideration was
whether a complaint is maintainable in the
form and style wherein notice has been
issued to the proprietor of the company and
the complaint has been filed against him
arraying him as the proprietor of the
company but without impleading the
company as a party in its capacity of a
corporate entity. Thus by referring to the
two orders of different co-ordinate Benches
the learned Single Judge framed the
aforesaid issue and referred the matter to a
Larger Bench.

8. The question whether filing of
an impleadment application in a complaint
filed under Section 138 of the Negotiable
Instruments Act, 1881 (hereinafter referred
to as N.I. Act) by a complainant for
impleading a company as an accused is no
more res integra. The Apex Court in the
case of Pawan Kumar Goel Vs. State of
U.P. & Another: 2022 SCC OnLine SC
1598 (decided on 17.11.2022) was faced
with the same issue.

9. The challenge before the Apex
Court was of a final judgement & order of
the High Court allowing the writ petitions
and
quashing
the
entire
proceedings
including the summoning order of the said
case before it. The submissions before the
Apex Court were that the High Court erred
in appreciating that the respondent no.2
was arrayed by name describing him as a
Director of the company and on account of
typographical error, the company could not
be arrayed as accused no.2 in complaint by
name, though the details thereof were
mentioned in the description of the accused
no.1.
The
issue
was
considered
in
paragraph 26, 27, 28 of the said judgement
and finally in paragraph 29 of the same, the
Court held that an additional accused
cannot be impleaded subsequent to the
filing of the complaint where the limitation
3 All. Mohd. Khalid Vs. State of U.P. & Anr.
129
period for taking the cognizance of the
offence under Section 142 of the N.I. Act
has expired. Paragraph 24 to 29 of the said
judgement reads as under:-

"24. Coming to the facts of the
present case at hand, a perusal of the
complaint filed as Annexure P-1 clearly
goes to establish two facts :-

(i)
The
description
of
the
respondent-accused
contained
in
the
complaint is as under :-

"Mr. Devendra Kumar Garg, S/o
Lala Jagdish Prasad Garg, Director, Ravi
Organics Limited, 19-A, New Mandi,
Police
Station-New
Mandi,
DistrictMuzaffarnagar."

From the aforesaid, it is clear
that though the respondent-accused was
described as a Director of Ravi Organics
Limited, but the company itself was not
arrayed as a party in the complaint.

(ii) A perusal of the averments
made in the complaint goes to show beyond
a shadow of doubt that there are no
averments that respondent no. 2, at the time
when the offence was committed, was in
charge of, and was responsible to the
company for the conduct of the business of
the company.

25. This Court has been firm with
the stand that if the complainant fails to
make specific averments against the
company
in
the
complaint
for
the
commission of an offence under Section
138 of NI Act, the same cannot be rectified
by taking recourse to general principles of
criminal jurisprudence. Needless to say, the
provisions of Section 141 impose vicarious
liability by deeming fiction which presupposes and requires the commission of
the offence by the company or firm.
Therefore, unless the company or firm has
committed the offence as a principal
accused, the persons mentioned in subSection (1) and (2) would not be liable to
be convicted on the basis of the principles
of vicarious liablity.

26. Reference in this connection
may also be made to another judgment of
the two-Judge Bench of this Court in
Himanshu Vs. B. Shivamurthy and Another
(Supra), the facts wherein have a stark
similarity to the facts of the present case,
considering the issue where the complaint
was lodged only against the director
without arraigning the company as an
accused and whether the company could be
subsequently arraigned as an accused, it
was observed as under:-

"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.

12. The provisions of Section 141
postulate that if the person committing an
offence under Section 138 is a company, 4
(2018) 13 SC 663 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
130 INDIAN LAW REPORTS ALLAHABAD SERIES
company could now be arraigned as an
accused."

27. This issue stands concluded
by a decision of three-Judge Bench of this
Court in the case of Aneeta Hada Vs.
Godfather Travels & Tours (P) Ltd.
(Supra), wherein it has been held that for
maintaining the prosecution under Section
141 of NI Act, arraigning of the company
as an accused is imperative and nonimpleadment of the company would be fatal
for the complaint. It may be relevant to
extract the following from 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."

28. The observations made in the
aforesaid judgment is also a complete
answer to the arguments advanced by
learned counsel for the appellant that in the
absence of any prohibition under the NI
Act, the amendment in the complaint is
permissible and the impleadment of an
additional accused subsequent to filing of
the complaint, would not be barred. At this
juncture, we may also refer to the following
observations made in the case of N.
Harihara Krishnan Vs. J. Thomas (Supra)
:-

"26.
The
scheme
of
the
prosecution in punishing under Section 138
of the Act is different from the scheme of
CrPC. Section 138 creates an offence and
prescribes punishment. No procedure for
the
investigation
of
the
offence
is
contemplated. The prosecution is initiated
on the basis of a written complaint made by
the payee of a cheque. Obviously such
complaints
must
contain
the
factual
allegations
constituting
each
of
the
ingredients of the offence under Section
138. Those ingredients are: (1) that a
person drew a cheque on an account
maintained by him with the banker; (2) that
such cheque when presented to the bank is
returned by the bank unpaid; (3) that such
a cheque was presented to the bank within
a period of six months from the date it was
drawn or within the period of its validity
whichever is earlier; (4) that the payee
demanded in writing from the drawer of the
cheque the payment of the amount of money
due under the cheque to payee; and (5)
such a notice of payment is made within a
period of 30 days from the date of the
receipt of the information by the payee
from the bank regarding the return of the
cheque as unpaid. It is obvious from the
scheme of Section 138 that each one of the
ingredients flows from a document which
evidences
the
existence
of
such
an
3 All. Mohd. Khalid Vs. State of U.P. & Anr.
131
ingredient. The only other ingredient which
is required to be proved to establish the
commission of an offence under Section
138 is that in spite of the demand notice
referred to above, the drawer of the cheque
failed to make the payment within a period
of 15 days from the date of the receipt of
the demand. A fact which the complainant
can only assert but not prove, the burden
would essentially be on the drawer of the
cheque to prove that he had in fact made
the payment pursuant to the demand.

27. By the nature of the offence
under Section 138 of the Act, the first
ingredient constituting the offence is the
fact that a person drew a cheque. The
identity of the drawer of the cheque is
necessarily required to be known to the
complainant
(payee)
and
needs
investigation and would not normally be in
dispute unless the person who is alleged to
have drawn a cheque disputes that very
fact. The other facts required to be proved
for securing the punishment of the person
who drew a cheque that eventually got
dishonoured is that the payee of the cheque
did in fact comply with each one of the
steps contemplated under Section 138 of
the Act before initiating prosecution.
Because it is already held by this Court
that failure to comply with any one of the
steps contemplated under Section 138
would not provide "cause of action for
prosecution". Therefore, in the context of a
prosecution under Section 138, the concept
of taking cognizance of the offence but not
the offender is not appropriate. Unless the
complaint contains all the necessary
factual allegations constituting each of the
ingredients of the offence under Section
138, the Court cannot take cognizance of
the offence. Disclosure of the name of the
person drawing the cheque is one of the
factual allegations which a complaint is
required to contain. Otherwise in the
absence of any authority of law to
investigate the offence under Section 138,
there would be no person against whom a
court can proceed. There cannot be a
prosecution without an accused. The
offence under Section 138 is person
specific. Therefore, Parliament declared
under Section 142 that the provisions
dealing with taking cognizance contained
in the CrPC should give way to the
procedure prescribed under Section 142.
Hence the opening of non obstante clause
under Section 142. It must also be
remembered that Section 142 does not
either contemplate a report to the police or
authorise the Court taking cognizance to
direct the police to investigate into the
complaint.

28. The question whether the
respondent had sufficient cause for not
filing the complaint against Dakshin within
the period prescribed under the Act is not
examined by either of the courts below. As
rightly pointed out, the application, which
is the subject-matter of the instant appeal
purportedly filed invoking Section 319
CrPC, is only a device by which the
respondent seeks to initiate prosecution
against Dakshin beyond the period of
limitation stipulated under the Act."

29. In view of the above,
arguments advanced by learned counsel for
the appellant that an additional accused
can be impleaded subsequent to the filing
of the complaint merits no consideration,
once the limitation prescribed for taking
cognizance of the offence under Section
142 of NI Act has expired. More
particularly, in view of the fact that neither
any effort was made by the petitioner at
any stage of the proceedings to arraign the
company as an accused nor any such
circumstances or reason has been pointed
out to enable the Court to exercise the
power conferred by proviso to Section 142,
132 INDIAN LAW REPORTS ALLAHABAD SERIES
to condone the delay for not making the
complaint within the prescribed period of
limitation."

10. Thus in view of the judgement in
the case of Pawan Kumar Goel (supra) it
is clear that no additional accused can be
impleaded subsequent to filing of a
complaint once the limitation prescribed
for taking of cognizance of the offence
under Section 142 of the N.I. Act has
expired.

11. The issue as referred by the
learned Single Judge in the present matter
thus is answered is that "no additional
accused can be impleaded subsequent to
filing of a complaint once the limitation
prescribed for taking of cognizance of the
offence under Section 142 of the N.I. Act
has expired."

12. The reference is thus answered
as above.

13. The matter be listed before the
learned Single Judge having roster in the
week commencing 24.03.2025.
---------
(2025) 3 ILRA 132
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.03.2025

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application U/S 482 No. 18295 of 2021

Taufik Ahmad ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Ved Prakash Mishra
Counsel for the Opposite Parties:
Vijai Kumar Tiwari, G.A.

Criminal
Law-The
Code
of
Criminal
Procedure,1973-Section 482 - The Indian
Penal Coe, 1860-Sections 420, 323, 376,
344 - The Uttar Pradesh Conversion
Prevention Act, 2020-Sections 3/4- Any
compromise or settlement with respect to the
offence of rape, against the honour of a woman,
which shakes the very core of her life and
tantamounts to a serious blow to her supreme
honour, offending both, her esteem and dignity,
is not acceptable to this Court--- The object of
Act, 2020 is to provide for prohibition of
unlawful conversion from one religion to another
by misrepresentation, force, undue influence,
coercion, allurement or by any fraudulent
means--- It is clear that unlawful religious
conversion, particularly when achieved through
coercion,
fraud,
or
undue
influence,
is
considered a serious offence, in which the Court
cannot quash the proceedings on the basis of
settlement between the parties--- The alleged
offences under section 376 IPC and Section 3⁄4
(1) U.P. Conversion Prevention Act, 2020, are
serious in nature and non-compoundable,
therefore, the instant proceedings cannot be
quashed on the basis of compromise between
the parties in exercise of powers conferred
under Section 482 Cr.P.C. (Para 48, 54 & 56)

Petition dismissed. (E-15)

List of Cases cited:

1. B.S. Joshi & ors. Vs St. of Har. & anr.;
(2003)4 SCC 675

2. Gian Singh Vs St. of Pun. (2012) 10 SSC 303

3. St. of M.P. Vs Laxmi Narayan & ors. (2019) 5
SCC 688

4. Madhu Limaye Vs The St. Of Mah. (1977) 4
SCC 551

5. St. of Karn. Vs L. Muniswamy (1977) 2 SCC
699

6. Madhavrao Jiwajirao Scindia Vs Sambhajirao
Chandrojirao Angre (1988) 1 SCC 692