9911796707
TMI Blog2018 (4) TMI 419X X X X Extracts X X X X X X X X Extracts X X X X ..... g the cheque dishonored, the petitioners’ company filed complaint under Section 138 of the N.I. Act against the respondent no. 2 /complainant. It is also evident that the complaint under Section 138 of the N.I. Act has been filed by M/s. BVSR Construction Company, therefore, the beneficiary under the alleged act is the company and the petitioners have merely worked on behalf of the company. Prima-facie it appears that it is a dispute with regard to account having nature of civil dispute and the complainant /respondent no 2 without taking recourse to resolve the matter in civil side simultaneously has made efforts to implicate them by setting criminal case into motion. The Apex court in the case of Sharad Kumar Sanghi Versus Sangit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no. 2 - company, a current Bank account was open in the Central Bank of India, Branch Gadarwara and after getting the cheque book issued by the Bank was handed over to the petitioners being representatives of M/s. BVSR Company after signature on behalf of the respondent no. 2 / complainant company so that the petitioners may use the cheques in connection with transaction relating to implementation of sub-contract but the petitioners on behalf of their Company misused the cheques and some fund was utilized personally and without performing the construction work, illegally and unauthorizedly payment was made. On perusal of the statement it was found that 12.5 Crore rupees is due against M/s. BVSR Construction company represented by the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pute of account with regard to transaction took place under the contract relating to construction of road. Hence, it is purely a civil dispute. This complaint has been filed just a counter blast to take revenge on account of filing complaint under section 138 of the Negotiable Instrument act against the respondent no. 2 / Company. In this regard, learned counsel for the petitioners has placed reliance on a judgment of the Apex court in the case of Sunil Kumar vs. Escorts Yamaha Motors Ltd. and others, (1999) 8 SCC 468, in which, it is held that if the cheque was given after signature for use for specific purposes and it was used for other purposes and caused loss; and the FIR filed in this regard after filing of the complaint under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etting the cheque dishonored, the petitioners company filed complaint under Section 138 of the N.I. Act against the respondent no. 2 /complainant. It is also evident that the complaint under Section 138 of the N.I. Act has been filed by M/s. BVSR Construction Company, therefore, the beneficiary under the alleged act is the company and the petitioners have merely worked on behalf of the company. 6. In the judgment rendered in the case of Sunil (supra), on which learned counsel has placed reliance, it is held that in the aforesaid circumstances, prima-facie no offence is made out and the proceedings be quashed. It would be appropriate to quote here relevant paras 2 and 5, as under :- 2. The decision of the Division Bench of Delhi Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere has been a gross abuse of process of law and as such the FIR should be quashed. The High Court on consideration of the case of the parties and on the materials was of the opinion that the informant himself has already resorted to civil remedy for adjudication by an arbitrator and thereafter having lodged the complaint must be held to have the abuse of the process of law and, therefore, the F. I. R. should be quashed in the interest of justice. 5. Bearing in mind the law laid down by this Court in the cases referred to earlier and the contentions raised by the learned Counsel appearing for the parties and on examining the allegations made in the FIR, we are persuaded to accept the submission of Mr. H.N. Salve and Mr. Arun Jaitley, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Managing Director. When a company has not been arrayed as a party, no proceeding can be initiated against it even where vicarious liability is fastened under certain statutes. It has been so held by a three-Judge Bench in Aneeta Hada v. Godfather Travels and Tours (P) Ltd. Aneeta Hada v. Godfather Travels and Tours P Ltd., 2012 5 SCC 661 in the context of the Negotiable Instruments Act, 1881. 13. When the company has not been arraigned as an accused, such an order could not have been passed. We have said so for the sake of completeness. In the ultimate analysis, we are of the considered opinion that the High Court should have been well advised to quash the criminal proceedings initiated against the appellant and that having not been ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
