J.K.P. AGRO FOODS PVT LTD THROUGH DIRECTOR KALPESH PRAJAPATI Vs MAHINDARPUR BALAJI TRADING (OPC) CO. PVT. LTD
RCMA 3191 of 2022
Facts:
1.Respondent No.1 was arraigned as an accused in his capacity as Director of Mahindarpur Balaji Trading (OPC) Co. Pvt. Ltd. The complainant is a Company registered under the Companies Act, 2013 and has filed the complaint through its Director – Kalpesh Prajapati.
2.Respondent has purchased the goods worth Rs.14,47,400/-, which was reflected as outstanding amount in its account. The complainant has produced the bilty issued by Surya Logistic Services as well as All India Road Transport Company in support of alleged delivery of the goods to the respondent original accused. Hence, according to the complainant the legally enforceable debt to be realized from the accused is to the tune of Rs.14,47,4000/.
3.Complainant has further contended that the respondent – accused had issued a cheque of the aforesaid Mahindarpur Balaji Trading (OPC) Co. Pvt. Ltd. towards the payment of the aforesaid outstanding amount on 29.05.2018. The said cheque was issued under the signature of the original accused. Complainant had presented the said cheque dated 29.05.2018, however, the said cheque was not realized pursuant to the instructions issued by the drawer for stop payment. The aforesaid fact of non-realization was communicated to the complainant by the concerned bank on 01.06.2018. Hence, the cause had arisen for the complainant to proceed for issuance of statutory notice under Section 138 of the Negotiable Instruments Act.
4.Complaint was filed with Additional Chief Judicial Magistrate, Anand. On 17.07.2018, such a complaint was registered as Criminal Case No.3043 of 2018. AGJM dismissed the case vide order dated 10.12.2021.
Issue: Whether the order dismissing the case is valid?
Arguments:
Petitioner:
1.Counsel submitted that Magistrate though initially after recording on verification, having satisfied with the compliance of basic ingredients under Section 138 of the Negotiable Instruments Act issued summons upon the respondent – accused however later on proceeded to dismiss the complaint on erroneous ground by holding the complaint itself being not maintainable.
2.Counsel contended that Section 2(62) of the Companies Act, 2013 and has argued that the Company can be incorporated with one Director also. In fact, in such a category of the Company, the compliance requirements are much lesser than that of private Company. By referring to the aforesaid provisions, she further contended that once it had been established that there is no another Director in the Company except present respondent – accused, who is also authorized signatory of the Company, there was sufficient compliance of the provisions of the Section 138 of the Negotiable Instruments Act.
Decision: The Hon’ble Court dismissed the application.
Rationale:
1.Relying on various cases the Hon’ble High court held that that non-joinder of the Company as accused, which otherwise is treated as principal offender being drawer of the cheque, the Director of the Company joined as sole accused representing the company as well as authorised signatory, would not served the provisions of Section 141 of the Act.
Order Copy:
