# Sumesh Sahani v. State of U.P. & Anr. Oposite Parties - **Citation:** (2020) 1 ILRA 1675 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2019-10-17 - **Case number:** Application U/S 482 Cr.P.C. No. 31732 of 2018 - **Bench:** Rajiv Joshi - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sumesh-sahani-v-state-of-u-p-anr-oposite-parties-45037 - **Pages:** 4 ## Headnote A. Dishonor of cheque - Section 141 - Negotiable Instrument Act, 1881 - cheque issued by Company - company was not impleaded as a party to the complaint proceedings - as per the Judgments of Supreme Court in case of Aneeta Handa and Himanshu as well as the provisions of Section 141 of the Act, the 'company' who has issued the cheque should be impleaded as the party to the complaint filed under Section 138 of the Act. That the provisions of Section 141 postulates 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 and in absence of the company being arraigned as an accused, a complaint against the applicant was not maintainable. (Para 11) Application u/s 482 allowed. (E-10) List of cases cited: - ## Text 1676 INDIAN LAW REPORTS ALLAHABAD SERIES culprits. Such statements would be very helpful to the accused to get bail and discharge orders. 12. The said judgment in Jogendra Nahak case was distinguished by this Court in Mahabir Singh v. State of Haryana, on facts, but the Court expressed its anguish at the fact that the statement of a person in the said case was recorded under Section 164 CrPC by the Magistrate, without knowing him personally or without any attempt of identification of the said person, by any other person. 13. In view of the above, it is evident that this case is squarely covered by the aforesaid judgment of the threeJudge Bench in Jogendra Nahak, which held that a person should be produced before a Magistrate, by the police for recording his statement under Section 164 CrPC. The Chief Judicial Magistrate, Sirohi, who entertained the application and further directed the Judicial Magistrate, Sheoganj, to record the statement of the prosecutrix, was not known to the prosecutrix in the case and the latter also recorded her statement, without any attempt at identification, by any court officer/lawyer/police or anybody else." (emphasis supplied) 23. Thus, in the first place, as a rule, statement under section 164 Cr.P.C. may be recorded only of a person sponsored by the investigating agency. By way of an exception to that rule, a confessional statement (of person facing criminal investigation), may be recorded by the Magistrate, if he has reason to believe that the person seeking to make such a statement is an accused person in a criminal investigation and further, such person seeks to get recorded his confessional statement. Also, for that purpose, the Magistrate may first call for a police report and also seek identification of such a person, before proceeding to record his statement. 24. The Jharkhand High Court, in the case of Reshma Khan Vs. State of Jharkhand (supra) has clearly held contrary to the view taken by the Supreme Court in Jogendra Nahak & Others Vs. State of Orissa & Others (supra). The view taken therein had been disapproved by the Supreme Court while dealing with a similar view that had been then taken by the Madras, Orissa and Kerala High Courts. 25. In view of the above clear position of law, no right can be claimed by the present applicant no. 1 to get her statement recorded under Section 164 Cr.P.C. as admittedly, she had not been sponsored by the investigating agency. Also, from the perusal of the affidavit of the mother of the applicant no. 1, it appears that that the application was filed only to dilute the statement of the applicant no. 1, as recorded under section 161 Cr.P.C. 26. Therefore, for the above reasons, the order passed by the learned court below does not warrant any interference, though for reasons different from those contained in the impugned order. 27. The present application lacks merit and is accordingly dismissed. ---------- (2020)1ILR 1675 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 17.10.2019 1 All. Nandini Jadaun & Anr.Vs. State of U.P. & Anr. 1677 BEFORE THE HON'BLE RAJIV JOSHI, J. Application U/S 482 Cr.P.C. No. 31732 of 2018 Sumesh Sahani ...Applicant Versus State of U.P. & Anr. ...Oposite Parties Counsel for the Applicant: Sri Amit Daga, Sri Piyush Kumar Shukla Counsel for the Opposite Parties: A.G.A. A. Dishonor of cheque - Section 141 - Negotiable Instrument Act, 1881 - cheque issued by Company - company was not impleaded as a party to the complaint proceedings - as per the Judgments of Supreme Court in case of Aneeta Handa and Himanshu as well as the provisions of Section 141 of the Act, the 'company' who has issued the cheque should be impleaded as the party to the complaint filed under Section 138 of the Act. That the provisions of Section 141 postulates 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 and in absence of the company being arraigned as an accused, a complaint against the applicant was not maintainable. (Para 11) Application u/s 482 allowed. (E-10) List of cases cited: - 1. Aneeta Handa and ors vs. God father Travels and Tours Pvt. Ltd. And ors 2012 (5) SCC 661 (followed) 2. Himanshu Vs. B Shivamurthy & anr 2019 Law Suit SC 86 (followed) (Delivered by Hon'ble Rajiv Joshi, J.) 1. Heard Sri Amit Daga, learned counsel for the applicant and learned AGA for the State. Nobody has put in appearance on behalf of O.P. No.2 in spite of service of notice to him. 2. The present petition under Section 482 Cr.P.C. has been filed for quashing the order dated 2.5.2018 passed by Additional Sessions Judge, Court No.5, Jhansi, in Criminal Revision No. 190 of 2017 (Sumesh Sahani Vs. State of U.P. & Anr.) as well as summoning order 30.4.2013 passed Judicial Magistrate Court No. 12 Jhansi, in Criminal Complaint Case No. 475 of 2013 and entire proceedings of Criminal Complaint Case No. 475 of 2013, under Section 138 of Negotiable Instruments Act (hereinafter referred to as the 'Act') P.S. Kotwali, District- Jhansi, pending before the court of Judicial Magistrate Court No. 12 Jhansi. 3. It reflects from the record that the O.P. No.2 has filed a complaint under Section 138 of the Act against the applicant for dishonoring of cheque dated 12.12.2012 amounting to Rs. 3.5 lacs. As per the complaint as well as from the cheque (appended at page 25 of the paper book), it is apparent that the cheque in question was issued by the company "Essex Construction Private Ltd." which is incorporated under the Companies Act, a copy of the certificate of incorporation has been appended at page 54. 4. Learned counsel for the applicant submits, the complaint is wholly incompetent since the cheque (giving rise to the complaint) was issued by the 'company' Essex Construction Private Ltd. and the said company that was not impleaded as an accused person in the complaint. Reliance has been placed on 1678 INDIAN LAW REPORTS ALLAHABAD SERIES Section 141 of the Act and also upon the judgments of Hon'ble Apex Court in the Case of Aneeta Hoda and others Vs. God Father Travels and Tours Pvt. Limited and others, ( 2012 (5) SCC-661) as well as in the Case of Himanshu Vs. B Shivamurthy & Anr. (2019 Law Suit SC 86). 5. On the other hand, learned AGA justified the prosecution by stating that the partners of the company have been arrayed as an accused, therefore, there is no necessity for impleading the company as an accused person. 6. I have heard learned counsel for the parties and perused the record. 7. At the very outset, it may be pointed out that, there is no dispute to the fact that the cheque has been issued by the company incorporated under the Companies Act. 8. The provisions of Section 141 of the Act are relevant, which read thus:- "141. Offences by companies.- (1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and 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 accordingly: Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence. [Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter.] (2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.-- For the purposes of this section,-- (a) "company" means any body corporate and includes a firm or other association of individuals; and (b) "director", in relation to a firm, means a partner in the firm." 9. A plain reading of the provision makes it clear, if the person committing the offence is a "company", in that event every natural person responsible for such commission as also the artificial person namely the company shall be deemed to be guilty of the offence and be liable to be proceeded against and punished accordingly. Also, certain other natural persons may be held guilty, if so proved. By way of the Explanation (a) attached to that provision of law, the term 'company' (specifically for the purpose of Section 141 of the Act), has been defined to mean 1 All. Sumesh Sahani Vs. State of U.P. & Anr. 1679 a body corporate or a firm or any other association of individuals. 10. In this regard, paragraph nos. 42 & 43 of the decision of Hon'ble Apex Court in the case of Aneeta Hoda and others Vs. God Father Travels and Tours Pvt. Limited and others, may be referred, which are quoted hereinunder: "42. .................... 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. "43. 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." 11. The similar view has been taken by the Hon'ble Apex Court in the latest judgment in the case of Himanshu Vs. B. Shivamuthy & Anr. and held that 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 and in absence of the company being arraigned as an accused, a complaint against the applicant was not maintainable. 12. From the aforesaid decisions of the Hon'ble Apex Court as well as provisions of Section 141, it is apparent that if the "company" who has issued the cheque, has not been arraigned as an accused, than the complaint under Section 138 of N.I. Act cannot be processed. 13. In view of the above, the order dated 2.5.2018 passed by Additional Sessions Judge and order dated 30.4.2013 passed Judicial Magistrate Court No. 12 Jhansi, in Criminal Complaint Case No. 475 of 2013 cannot be sustained in the eyes of law, and are hereby quashed. 14. The present application stands allowed. No order as to costs. ---------- (2020)1ILR 1678 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 25.09.2019 BEFORE THE HON'BLE KARUNA NAND BAJPAYEE, J. Application U/S 482 Cr.P.C. No. 35595 of 2019 Sharad Agrawal ...Applicant Versus State of U.P. & Anr. ...Respondents