1 2025:CGHC:7767 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRMP No. 542 of 2025 1 - Shri. Madhu K. Nayar S/o Kandunni Aged About 67 Years R/o The Nest - 504, Near Lendra Park, Ramdaspeth Nagpur, District Nagpur, Maharashtra ... Petitioner versus 1 - Rajkumar Agrawal S/o Late Shri Chotelal Agrawal Aged About 63 Years Designa- tion - Director, Sarvmangla Coal Infrastructure Private Limited, R/o Agrasen Bhawan Marg Korba, Police Station Kotwali, Korba, Tehsil And District Korba Chhattisgarh ... Respondent ---------------------------------------------------------------------------------------------- For Petitioner : Mr. Anshul Tiwari, Advocate appears along with Mr. Manoj Pranjpe, Advocate For Respondent : None --------------------------------------------------------------------------------------------- Hon'ble Shri Arvind Kumar Verma, Judge Order on Board 13.02.2025 1. This petition filed under Section 528 of the Bharatiya Nagrik Suraksha Sanhita, 2023 by the petitioner is challenging the order dated 18.08..2021 whereby the learned Judicial Magistrate First Class, Korba District Korba, Chhattisgarh has taken cognizance of the complaint case filed by complainant/respondent under Section 138 of Negotiable Instrument Act, 1881 and has directed for the registration of the criminal case against the petitioner herein and has further directed for the issuance of process to the petitioner. The petitioner is further challenging the entire criminal proceedings initiated pursuant to the criminal case No. 2239/2021. 2. The case in nutshell is such that the complaint case was filed under Section 138 of Negotiable Instrument Act against the petitioner on 09.06.2021. 2 The respondent in his complaint case stated that the accused and complainant are acquainted to each other from a very long time and also shared business relation with each other. It has been alleged in the complaint that the petitioner has done a construction work of coal washery situated at village Kothari district Korba and Village Kanberi, Korba for which he has obtained a sum of Rs. 1,00,00,000/- from the respondent in a span of two years on different dates and the complainant herein has arranged the aforesaid amount from his friends and other relatives and then has given it as a loan to the petitioner. It has been further alleged that the aforesaid amount by December, 2020. It has been further alleged that, when the accused failed to return the amount, thereafter he has given a cheque of Rs. 1,00,00,000/- bearing cheque no. 70631 drawn on IDBI Bank dated 18.02.2021 and when the respondent credited the cheque into his account at Indian Bank Branch T.P. Nagar, Korba on 20.02.2021 which got dishonored with a tip of “Account Blocked” on 20.02.2021.Thereafter it has also been alleged that the complainant has approached the accused but his phone was switched off and the petitioner herein has started avoiding the complainant. The respondent issued statutory notice on 22.03.2021 to the petitioner and asked to pay the loan amount within 15 days from the date of receiving of notice and when the petitioner failed to pay the amount within prescribed time then the respondent filed complaint case against the petitioner that the said case has been filed with a delay application. 3. Learned counsel for the petitioner contended that the order impugned is perverse and are not sustainable to the eye of law. Neither the company was served with legal notice nor is the company arrayed as an accused by the complainant, which is the primary requirement for taking congnizance under Section 138 r/w 141 of the NI Act. As in order to make out the case under Sectin 138 of the NI Act, it is necessary to establish that the cheques are issued for 3 discharge of lawful debt for liability. The demand notice is issued to the authorized signatory/director of the company, and instead of institution of a complaint case against the firm the complainant has instituted the same against the petitioner. He also contended that no objection has been raised in this regard before the learned trial court. In order to substantiate his facts and findings about the case he specifically relied upon the two important judgments passed by the Hon’ble Supreme court in the matter of Dilip Hariramani Vs. Bank of Baroda 2022 SCC Online SC 576 in para 14 as well as the matter of Charanjeet Singh Saini Vs. Ispat India, through partner Yashwardhan Agrawal 2022 SCC Online Chh 550: 2022 ACD 499” (2022) 3 CGLJ (SN 37) 40 in para 14 held as under:- The petitions have been filed at the stage of framing of charges. Whether it would be maintainable? In order to arrive at an answer to the query, the complaint and the orders summoning the accused is examined. Admittedly, the company was not made an accused in the cases expect the Directors, therefore, applying the law laid down by the Supreme Court as cited supra, it appears that while summoning the accused, the Magistrate has failed to see the principles of law and in turn when the objection was made, the learned Sessions Judge also failed to take into account the principles laid down by the Supreme court. Therefore, applying the principles as has been decided in case of Pepsi foods Limited V. Special Judicial Magistrate, (1998) 5 SCC 749, which mandates that the Magistrate has to carefully scrutinize the evidence brought on record and cannot be a silent spectator at the time of recording of preliminary evidence, the petition under Section 482 would be maintainable for the reason that both the courts below have failed to take into account. 4. I have heard learned counsel for the petitioner and perused the records available with utmost circumspection. 5. After going through all the documents available on record as well as the 4 submission made by the learned counsel for the petitioner, it is quite vivid that no objection has been raised in this regard before the learned trial court. Therefore, this court is of the considered opinion that it would be appropriate to give 15 days time from the date of receipt of copy of this order to the petitioner to file all the necessary objection(s) with regard to Section 141 of the Negotiable Instrument Act, 1881 and on the other hand learned trial court is directed to decide the objection raised by the parties in accordance with law. 6. Meanwhile, the proceedings of the Criminal Case No. 2239/2021 shall remain stayed till the disposal of the objection(s) so raised. sd/- (Arvind Kumar Verma) Judge alfiza