Chandra Pal Singh vs Ashok Leyland Ltd.

T.K. Kaushal, J.—This petition has been directed u/s 482 of the Code of Criminal Procedure (hereinafter shall be referred as Code) seeking relief to set aside the order dated 21/01/2010 passed by the Additional Sessions Judge, Rewa in Criminal Revision No. 359/2009 and to dismiss the complaint Case No. 277/2006 pending in the Court of JMFC, Rewa u/s 138 of NI Act. Facts giving rise to this petition, in short, are that on 16/10/2003 petitioner entered into a hire-purchase agreement with the respondent, to take loan of Rs. 11,92,264/- to purchase the Truck bearing Chassis No. 215461, Engine No. 243151. On 30/04/2005, petitioner issued cheque No. 102457 of Rs. 1,50,000/-, which was bounced on the ground of "no sufficient balance". Respondent filed complaint u/s 138 of NI Act against the petitioner in JMFC, Rewa on 23/06/2005. On behalf of Ashok Leyland, a complainant was filed by Shri R.S. Chouhan, Manager.

At the stage of judgment i.e. on 25/08/2009, petitioner filed application mentioning that Ashok Leyland Finance Limited Company is not in existence and Manager Shri R.S. Chouhan was not authorized person to file the complaint, hence any such complaint should not be permitted to continue and should be dismissed.

The respondent also filed an application before the Trial Court requesting that w.e.f. 29/04/2004 Ashok Leyland Finance Limited Company has been merged with Indusind Bank Limited by the order of the competent court. Shri Praveen Chandra Mishra, has been authorized to continue the complaint.

Vide order dated 09/10/2009, holding that though this complaint has been filed by Ashok Leyland Finance Limited on 23/06/2005, whereas it was merged in the Indusind Bank Limited on 06/05/2005, complainant will be not deemed to be non-existing company. It is merely a transfer of liabilities and assets. At the same time, request of the respondent was also declined to make amendment in the complaint by making reference of Indusind Bank Limited and also reference of Shri Praveen Chandra Mishra, having authority to file and continue the complaint.

Trial Court gave much emphasis on the fact that during trial, while arrest warrant was issued against the petitioner, he deposited Rs. 50,000/- in lieu of part payment of the cheque amount, hence, all above such objections are of technical nature. Above such order was assailed in the revision by the petitioner, Court of Revision also declined by holding that these objections are of technical nature, and Trial Court has committed no error.

Fact that Ashok Leyland Finance Limited Company is not in existence and Manager Shri R.S. Chouhan is not authorized by the Company to file this complaint cannot be simply ignored because taking responsibility of the aforesaid lapses, even respondent requested the Court to make amendments in the complaint.

It is pertinent to note that whole trial was completed and case was fixed at the stage of judgment. Considering the defence of the petitioner, as he stated in his statement recorded u/s 313 of the Code that he purchased the Truck on hire purchase from Ashok Leyland and delivered 10 cheques after signing them, though the blank cheques. Further in view of the fact that for getting rid of the arrest warrant issued during Trial he agreed to deposit Rs. 50,000/- as part payment of the cheque amount, quashment of complaint will amount to miscarriage of justice. Rather, interest of justice demand that Trial should be continued, with full fairness and openness between the parties.

While complainant himself, in view of the fact of the merger of the Company, requested for amendment in the complaint, it should have been allowed because admittedly Ashok Leyland Finance Limited Company Rewa is now not in existence in the same form as it existed at the time of the agreement.

With the view to provide full and effective opportunity to the parties, application requesting for the amendment in the complaint should be allowed. Since Truck was purchased on hire purchase and petitioner is under the obligation to owe the responsibility of payment through cheque signed and issued by him in that regard. No case for quashment of complaint u/s 138 NI Act is made out. Application of the respondent filed before the Trial Court (Annexure A-7), should have been allowed. In the result, this petition is allowed to the extent that impugned order is set aside and Trial Court is directed to permit the respondent to amend the complaint accordingly and to proceed further in the Trial according to law.

This petition is allowed in part as indicated above.