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SUBHASH VIDYARTHI, J. –

1. Heard Shri Anand Kumar Shukla, learned counsel for the petitioners and Shri Shivam Mishra, learned AGA for the State.

2. By means of the application filed under Section 482 Cr.P.C. the petitioners/applicants have challenged the validity of an order dated 22.08.2017, passed by the learned Additional Judicial Magistrate, Court No.6 in Complaint No.82529 of 2014, under Section 138 of N.I. Act, as well as non-bailable warrant dated 15.05.2018 relating to Police Station Hazratganj, District Lucknow whereby the petitioners were summoned to face trial for the offence under Section 138 of Negotiable Instruments Act.

3. The cause list shows the name of Shri Padam Kant Mishra, as learned counsel for the private respondent but neither he is present in the court nor has any request been made on his behalf for adjournment of the case. The matter is pending since 2018. Therefore, the court proceeds to pass appropriate orders after hearing the submissions of learned counsel for the petitioner and the learned Government Advocate and perusing the record.

4. The aforesaid case has been instituted on the basis of a complaint filed by opposite party No. 2 - Laxmi Narayan Pandey, against the petitioners namely, Ram Pal Singh, Vinod Singh and Vijay Singh, stating that the complainant is the Managing Director of M/s. Gayatri Dham Colonizers and Constructions (India) Limited and the petitioners herein (opposite parties in the complaint) are the Managing Director and Directors of Mahalaxmi Power Corporation Limited.

5. The complainant and the present petitioners had entered into a Memorandum of Understanding (in short 'MOU') dated 08.5.2013, in respect of purchase and development of certain plots of land at Village Natkur, Bhadarsa, Chandrawal and other adjoining villages of Nyay Panchayat, Bijnore, Tehsil Sasar, District Lucknow. In pursuance of the aforesaid agreement, the petitioners have given a cheque dated 30.06.2014 for Rs.1,73,00,000/- (One Crore Seventy three lakh only) to M/s. Gayatri Dham Colonizers and Constructions (India) Limited. The complainant presented the cheque in the bank account of M/s. Gayatri Dham Colonizers and Constructions (India) Limited on 22.09.2014. On 29.03.2024, the Bank returned the cheque unpaid for the reason of insufficiency of funds. Thereafter, the complainant sent a legal notice dated 4/7.10.2014 to the petitioners but they did not pay the amount. Upon this complaint, the impugned summoning order dated 22.08.2017 has been passed after recording the aforesaid facts.

6. A copy of the MOU dated 08.05.2013 referred to in Para 2 of the complaint has been annexed as Annexure No.6 to the Writ Petition. Although the complaint states that the MOU was entered into between the complainant- Laxmi Narayan Pandey and the petitioners Ram Pal Singh, Vineet Singh and Vijay Singh, its copy annexed as Annexure No. 4, reveals that this MOU was in fact, entered into between Mahalaxmi Power Corporation Limited, a Company registered under the Companies Act, 1956, through its Directors namely - Ram Pal Singh, Vineet Singh, Vijay Singh and M/s. Gayatri Dham Colonizers and Constructions (India) Limited. through its Managing Director, Laxmi Narayan Pandey.

7. A Company is a juristic person which is distinct and different from its Managing Director/Directors. When the MOU was executed between the aforesaid two Companies, it cannot be said that it was executed between the complainant and the petitioners.

8. The complaint itself states that Mahalaxmi Power Corporation Limited has issued a cheque in the name of M/s. Gayatri Dham Colonizers and Constructions (India) Limited. This cheque was returned by the bank unpaid. Therefore, the person aggrieved by the dishonour of the cheque was the Company to whom the cheque was given and in whose bank account it was presented, namely Gayatri Dham Colonizers and Constructions (India) Limited.

9. The aggrieved Company has not filed the complaint under Section 138 of Negotiable Instruments Act. Moreover, the drawer of the cheque was Mahalaxmi Power Corporation Limited and this Company has also not been impleaded in the complaint.

10. Notice on the application was issued to the opposite party No.2, by means of an order dated 18.6.2018 and four weeks' time was granted to file counter affidavit.

11. On 13.06.2019, the office reported that the notice had been served personally on the opposite party No. 2. However, the opposite party No. 2 did not put in appearance and thereafter on 03.07.2019, a co-ordinate Bench of this Court, keeping in view the aforesaid facts and the legal position in consideration, had passed an interim order on 03.07.2019 providing that no coercive action shall be taken against the applicants in pursuance of the Complaint Case No.82529 of 2014, under Section 138 of the Negotiable Instrument Act.

12. Although Mahalaxmi Power Corporation Limited is not a party to this case, but he has not filed any counter affidavit. Shri Vinay Prakash Katiyar, Advocate has filed Vakalatnama on behalf of M/s. Mahalaxmi Power Corporation Limited on 01.03.2021.

13. In these circumstances, the facts pleaded in the petition remain uncontroverted and nothing has been brought on record to dispute the correctness of the documents annexed with the petition.

14. Section 138 of the Negotiable Instruments Act, 1881 reads as follows:

"138. Dishonour of cheque for insufficiency, etc., of funds in the account.—Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained in this section shall apply unless—

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

Explanation.—For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.]"

15. Learned counsel for the petitioners has placed reliance upon a decision of the Hon'ble Supreme Court in the case of Himanshu vs. B. Shivamurthy and others: (2019) 3 SCC 797, wherein the Hon'ble Supreme Court has held that in absence of the Company being arraigned as an accused, a complaint against the appellant would not maintainable. The person who had signed the cheque as a Director of the Company and for and on its behalf, may not be tried for the offence in absence of a notice of demand being served on the Company and without compliance with the proviso to Section 138 of N.I. Act.

16. In the present case also, the record reveals that the MOU was executed between Mahalaxmi Power Corporation Limited and the cheque in question was also issued by M/s. Gayatri Dham Colonizers and Constructions (India) Limited in favour of Mahalaxmi Power Corporation Limited. None of the companies is a party to the complaint under Section 138 of Negotiable Instrument Act.

17. In these circumstances, the complaint under Section 138 the Negotiable Instruments Act would not be maintainable if the Company in whose favour, the cheque was issued and which was aggrieved by non-payment of the amount of cheque, does not come forward to file the complaint. Secondly, if the Company which had issued the cheque, and which was liable to pay the amount upon the cheque being dis-honoured, was not sent any notice, the complaint filed by any other person including the Managing Director and the Directors of the Company, would not be maintainable. Further, in absence of the Company which had issued the cheque, being impleaded as an opposite party, a complaint under Section 138 of the Negotiable Instruments Act would not be maintainable.

18. In the present case, the company in whose favour a cheque was issued has not come forward to file a complaint. The company which had issued the cheque has not been issued a notice under Section 138 of Negotiable Instruments Act and has not been made an opposite party in the complaint. Therefore, the complaint was not maintainable for the aforesaid reason. The trial court has passed the impugned summoning order dated 22.08.2017 without considering the aforesaid aspects of the matter which vitiates the trial court's order.

19. Accordingly the petition under Section 482 Cr.P.C. is allowed. The impugned order dated 22.8.2017 passed by the learned Additional Judicial Magistrate, Court No.6, in Complaint No.82529 of 2014 under Section 138 of N.I. Act, non-bailable warrant dated 15.05.2018 relating to Police Station Hazratganj, District Lucknow as well as the entire proceedings of the complaint case are quashed.

Petition allowed.

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