# Rajiv Malhotra v. State of U.P. & Anr

- **Citation:** (2024) 5 ILRA 869
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-06
- **Case number:** Application U/s 482 No. 11995 of 2024
- **Bench:** Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajiv-malhotra-v-state-of-u-p-anr-52087
- **Pages:** 5

## Headnote

A. Criminal Law-Criminal Procedure Code,
1973-Section 482-Negotiable Instrument
Act,
1881-Section
138-quashing
of
summoning order-complaint of opposite
party was dismissed in default-Proceeding
under section 138 NI Act is quasi civil in
nature, therefore a bar of section 362 CrPC
will not apply if the complaint is dismissed
for want of prosecution at the initial stagethe Apex court observed that if the order
was not passed on merit, the same could be
recalled by the same court-even if there is
a condition that before presentation of
cheque, notice should be given to the
drawer of cheque, even then on bouncing
of such conditional cheque, offence u/s
138 NI Act will be attracted if no
870 INDIAN LAW REPORTS ALLAHABAD SERIES
information is given to the drawer of the
cheque-notice
of
demand
through
courier service is valid service for
section 138 NI Act, but the presumption
of service u/s 27 of the General Clauses
Act cannot be invoked for the notice sent
through courier till the amendment is
made under section 27 of the General
Clause Act so as to include the courier
service apart from registered postService of notice through Whatsapp u/s
138 NI Act will be deemed to be served
as per the procedure of section 13 of I.T.
Act and no separate rule for prescribing
the delivery of service is required. (Para
1 to 28)

The application is dismissed. (E-6)

List of Cases cited:

## Text

5 All. Rajiv Malhotra Vs. State of U.P. & Anr.
869
interpreted so as to subserve that intent.
There is a general presumption that an
enactment has to be given a purposive
interpretation with a construction that best
gives effect to the purpose of the enactment.

42. The provision relating to orders
for maintenance under Section 125 Cr.P.C.,
being in the nature of a 'social justice
legislation', the role and duty of the Courts,
in the said context, would be to understand
the purpose of the enactment and to help the
law achieve its objective.

43. Taking into the view the social
objective of the legislative scheme with
regard to grant of orders for maintenance,
under Chapter IX of the Cr.P.C., and
applying
the
principle
of
purposive
construction, the provisions contained under
Sections 125-127 when read in conjunction
with Section 362, would lead to the
conclusion that the embargo contained
under Section 362, is expressly relaxed in
proceedings under Section 125 Cr.P.C.

44. The embargo contained in
Section 362 having been held to be relaxed
in proceedings under Section 125 and the
court having not become functus officio after
passing of the final order, the recall
application which had been filed seeking
restoration of the case, could not have been
rejected by assigning a reason that the Court
was not empowered to entertain the same.

45. The order dated 02.01.2023
passed by the Principal Judge, Family Court,
Agra in Misc. Case No. 2053 of 2022, in
Maintenance Case No. 783 of 2014, is
therefore unsustainable, and is, accordingly,
set aside.

46. The matter is remitted to the
court concerned for passing of a fresh order
on the recall application, in the light of the
observations made above.

47. The court concerned would be
expected to make an endeavour to dispose of
the
recall/restoration
application
as
expeditiously as possible.

48. The petition stands allowed to
the extent as indicated above.
----------
(2024) 5 ILRA 869
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.05.2024

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Application U/s 482 No. 11995 of 2024

Rajiv Malhotra ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Abhay Mani Tripathi, Sri Nipun Singh

Counsel for the Respondent:
G.A.

A. Criminal Law-Criminal Procedure Code,
1973-Section 482-Negotiable Instrument
Act,
1881-Section
138-quashing
of
summoning order-complaint of opposite
party was dismissed in default-Proceeding
under section 138 NI Act is quasi civil in
nature, therefore a bar of section 362 CrPC
will not apply if the complaint is dismissed
for want of prosecution at the initial stagethe Apex court observed that if the order
was not passed on merit, the same could be
recalled by the same court-even if there is
a condition that before presentation of
cheque, notice should be given to the
drawer of cheque, even then on bouncing
of such conditional cheque, offence u/s
138 NI Act will be attracted if no
870 INDIAN LAW REPORTS ALLAHABAD SERIES
information is given to the drawer of the
cheque-notice
of
demand
through
courier service is valid service for
section 138 NI Act, but the presumption
of service u/s 27 of the General Clauses
Act cannot be invoked for the notice sent
through courier till the amendment is
made under section 27 of the General
Clause Act so as to include the courier
service apart from registered postService of notice through Whatsapp u/s
138 NI Act will be deemed to be served
as per the procedure of section 13 of I.T.
Act and no separate rule for prescribing
the delivery of service is required. (Para
1 to 28)

The application is dismissed. (E-6)

List of Cases cited:

1. Major General A.S Gauraya & anr, Vs S.N.
Thakur & anr. (1986) 2 SCC 709

2. Krishan Lal Vs Sangeeta Aggarwal Cri. Misc.
No. M- 79076 of 2006

3. Smt. Preeti Kamal Kothari Vs St. of U.P. & anr.
(2016) SCC OnLine All 461.

4. Indus Airways Pvt Ltd & ors. Vs
Magnum Aviation Pvt Ltd & anr.(2014) 12
SCC 539

5. Vishnu Agarwal Vs St. of U.P. & anr.(2011) 14
SCC 813

6. Sunil Todi & ors. Vs St. of Guj. & anr.(2021)
SCC OnLine SC 1174

7. St. of U.P. Vs Jogendra Singh (1963) AIR SC
1618

8. Deepak Kumar & anr. Vs St. of U.P. &
anr.(2006) SCC OnLine All 1536

9. Ali Jan Vs St. of U.P. & anr. (2020) SCC Online
All 75

10. Deepak Kumar & anr. Vs St. of U.P.

11. Shri Ishar Alloy Steels Ltd. Vs Jayaswals Neco
Ltd (2001) 3 SCC 609
12. Rajendra Vs St. of U.P. & anr. Appl. u/s 482
No. 45953 of 2023

(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.

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
5 All. Rajiv Malhotra Vs. State of U.P. & Anr.
871
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
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
872 INDIAN LAW REPORTS ALLAHABAD SERIES
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
(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.
5 All. Indraveer Singh & Anr. Vs. State of U.P. & Anr.
873
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 873
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.05.2024

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Application U/s 482 No. 8779 of 2024

Indraveer Singh & Anr. ...Petitioners
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Gautam, Mohd. Shamim, Nafees Ahmad

Counsel for the Respondent:
Ajay Sengar, G.A.

A.
Criminal
Law-Criminal
Procedure
Code,1973-Section
482-Negotiable
Instruments
Act,
1881-Section
138quashing of entire proceedings-in the
present case on the basis of the complaint,
statement documents, cognizance was
taken by the earlier court not having
jurisdiction,
which
was
subsequently
transferred to the judicial magistrate, oraisection 460(e) Crpc provides that if the
cognizance
of
an
offence
is
taken
erroneously in good faith under Clause (a)
of Section 190(1) of Crpc by a court not
having jurisdiction, even then same will
not vitiate the proceeding-Therefore the
transferee court will continue to proceed
from that stage instead of hearing the
complaint afresh.(Para 1 to 17)

The application is dismissed. (E-6)

List of Cases cited:

1. Yogesh Upadhyay & anr. Vs Atlanta Ltd. (2023)
SCC Online SC 170

2. Dashrath Rupsingh Rathod Vs St. of Mah.
(2014) 9 SCC 129

3. V.Velu, S/o Veduppan Vs Chennakrishnan, S/o.
Venkataraman, CRLA No. 398 of 2011

4. Bridgestone India Pvt Ltd. Vs Inderpal Singh
(2016) 2 SCC 75

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

1. Heard Sri Mohd. Shamim, learned
counsel for the applicants, Sri Ajay Sengar,
learned counsel for opposite party no.2 and
Sri Uday Bhan, learned AGA for the State.

2. The present 482 Cr.P.C.
application has been filed to quash the entire
proceedings of Complaint No. 40 of 2024
(Old
Complaint
no.5095/2019
and
Complaint
No.427
of
2021)
(Smt.
Iksharajey Versus Indraveer Singh and
Another), under Section-138 of Negotiable
Instruments Act, 1881 (hereinafter referred
to as 'the Act, 1881'), Police Station-Kotwali
Orai, District-Jalaun, pending in the Court
of learned Judicial Magistrate, Jalaun, as
well as impugned order dated 01.02.2024.

3. The contention of learned
counsel for the applicants is that the cheque
in question was presented in the account of
opposite party no.2 in State Bank of India,
Jalaun, but the complaint was filed at Orai.
Thereafter,
the
applicants
moved
an
application before the learned Sessions