IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MMO No.10 of 2022 a/w 11 to 13 of 2022

Reserved on:20.05.2026

Date of Decision: 01.06.2026

Uploaded on: 01.06.2026

_______________________________________________________

1. CRMMO-10 of 2022

Rajeshwar Sabarwal & Ors.

…….Petitioners

Versus

M/s Royal Apple Merchants

…..Respondents

2. CRMMO-11 of 2022

Rajeshwar Sabarwal & Ors.

…….Petitioners

Versus

M/s Royal Apple Merchants

…..Respondents

3. CRMMO-12 of 2022

Rajeshwar Sabarwal & Ors.

…….Petitioners

Versus

M/s Royal Apple Merchants

…..Respondents

4. CRMMO-13 of 2022

Rajeshwar Sabarwal & Ors.

…….Petitioners

Versus

M/s Royal Apple Merchants

…..Respondents

Coram:

Hon’ble Mr. Justice Sandeep Sharma, Judge.

Whether approved for reporting?

1

Yes.

For the petitioner(s): Mr. R.K. Bawa, Senior Advocate with

Mr. Jeevesh Sharma, Advocate.

For the Respondent(s):Mr. Pramod Singh Thakur, Advocate, for

respondent No.1, in all the petitions.

1

Whether the reporters of the local papers may be allowed to see the judgment?

2

Mr. Ajay Kumar, Advocate, for respondents

No.3 & 4, in all the petitions.

_______________________________________________________

Sandeep Sharma, Judge:

Since common questions of facts are involved in all the

above-captioned cases, this Court heard them together and the same

are now being disposed of vide common judgment.

2. For having bird’s eye view, facts, which are common in all

the cases, are that respondent No.1-complainant (in short

“complainant”) instituted complaint under Section 138 of Negotiable

Instruments Act (in short “Act”) in the Court of learned Additional

Chief Judicial Magistrate, Shimla, Himachal Pradesh, alleging therein

that petitioner-accused and proforma respondents No.2 to 4

(hereinafter collectively referred to as the “accused”) had purchased

36952 apple boxes from him for a sum of Rs.4,90,80,459/-. However,

accused paid only sum of Rs.1,68,10,000/- till 22.05.2013 and

subsequently, with a view to discharge their lawful liability, accused

No.2 issued a cheque dated 30.05.2013 for a sum of Rs.30,00,000/-

drawn on Punjab National Bank, SDA Complex, Kasumpti, Shimla,

as part payment towards the balance payment of the complainant.

Since afore cheque was dishonoured by the banker of accused No.2

on account of insufficient funds in his account, coupled with the fact

that despite his having received legal notice, afore amount was not

paid, complainant instituted proceedings under Section 138 of the Act

in the competent Court of law, which taking note of averments made

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in the complaint as well as preliminary evidence adduced on record

by the complainant, passed order dated 18.11.2013, thereby

summoning the accused.

3. Being aggrieved and dissatisfied with issuance of

summoning order, accused filed a petition under Section 482 Cr.P.C

i.e. Cr.MMO No.150 of 2015, titled as Rajeshwar Sabharwal son of

Sh. Om Prakash Sabharwal and others Vs. M/s Royal Apple

Merchants & Ors., praying therein to set aside order dated

18.11.2023 on the ground that complaint filed at the behest of the

complainant was not maintainable. In afore proceedings, accused

pleaded that the complainant had not prosecuted company through its

duly authorized natural person and no specific pleadings had been

made in the complaint with regard to role, if any, played by accused

No.2 to 6 in day to day affairs of the company. However, afore pleas

taken at the behest of the accused came to be negated by this Court

vide judgment dated 25.02.2016 (Annexure P-4). In afore judgment, it

came to be ruled that as per Section 204 Cr.P.C, at the time of issuing

process, Magistrate is required to satisfy himself that there are

sufficient grounds for proceeding against the accused persons. If the

Magistrate is satisfied that sufficient grounds exist for proceeding,

he/she shall issue summons in a summons case and warrants in a

warrant case.

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4. In afore proceedings, it also came to be held that

Magistrate is not required to go into detailed discussion of merits and

demerits of the case at the time of issuing process. In support of

aforesaid findings, this Court placed reliance upon the judgment

passed by the Hon’ble Apex Court in Nagawwa Vs.Veeranana

Shivalingappa Konjalgi and others AIR 1976 Apex Court 1947

(DB) and Chandra Deo Singh Vs. Prakash Chandra AIR 1963

Apex Court 1430 (Full Bench). In the afore judgment passed by the

Hon’ble Apex Court, it specifically came to be ruled that complainant

has impleaded Tara Business Group Pvt. Ltd. as co-accused No.1,

but he failed to mention the name of the natural person, through

whom company was being represented as co-accused No.1,

however, court is of the opinion that mistake is procedural irregularity

only, which can be rectified in the interest of justice at any stage of the

judicial proceedings.

5. Afore judgment rendered in the year 2016 has attained

finality because no further proceedings were initiated before the

superior court of law against the aforesaid judgment. Matter was

again listed on 05.08.2019, on which date it came to be recorded that

“defence of accused No.2 to 6 seems to be that they are not

responsible for day to day working of the company and thus, not in a

position to represent accused No.1. Court is of the opinion that in the

present case, at this prima facie stage there is no denial of the

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accused that they are directors of the company. The cheque as per

record has been signed by accused No.2. Thus, Court, at this prima

facie stage will presume, unless and until contrary is proved that

accused No.1 i.e. company is being represented through accused

No.2 and also by accused No.3 to 6 being directors of the company.

Since case is of the year 2013, no further exemption will be allowed

on behalf of accused No.2 to 4. Now to come up for presence of

accused before the Court on 11.09.2019.” Aforesaid order has also

attained finality because the same was never laid challenge in the

appropriate proceedings (Annexure P-5). Vide order dated

17.01.2020 (Annexure P-1), matter came to be listed before the court

below for putting notice of accusation to the accused persons. On that

day, accused No.2 to 4 questioned the maintainability of the complaint

alleging that accused No.1, being a company, had not been arrayed

through its director or any other authorized person, as such, same

was not maintainable. However, Court below, taking note of order

dated 25.02.2013 passed in Cr.MPM No.1165 of 2012 under Section

482 Cr.P.C as well as order dated 05.08.2019 passed by it, rejected

the aforesaid ground raised at the behest of the accused for dismissal

of the complaint and proceeded to frame notice of accusation to the

accused persons under Section 138 of the Act. In afore background,

accused have approached this Court in the instant proceedings for

quashing the complaint No.97-3 of 2017/13 as well as order dated

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17.01.2020, whereby notice of accusation came to be put to the

accused.

6. In nutshell, case of the accused, as has been highlighted

in the grounds of petition and further canvassed by Mr. R.K. Bawa,

learned Senior counsel representing the petitioner duly assisted by

Mr. Jeevesh Sharma, Advocate, is that complaint sought to be

quashed is not maintainable for the reason that accused-company i.e.

Tara Business Group Pvt. Ltd., on whose behalf cheque in question

was allegedly issued by accused No.2, has not been impleaded

through natural person. Mr. Bawa submitted that since company is a

juristic person, same is required to be impleaded through a natural

person. He submitted that since on account of aforesaid omission on

the part of the complainant, accused No.1 cannot be said to have

been impleaded as an accused in the complaint initiated at the behest

of the complainant, complaint filed against other accused i.e. directors

of the company is not maintainable. To substantiate his aforesaid

arguments, he placed reliance upon judgments rendered by Hon'ble

Apex Court in Aneeta Hada v. Godfather Travels & Tours (P) Ltd.,

(2012) 5 SCC 661, and Associated Cement Co. Ltd. Vs.

Keshavand, (1998) 1 SCC 687 as well as judgment dated

11.09.2023, passed by the Coordinate Bench of this Court in Cr.MMO

No.109 of 2020, tilted as Prithi Pal Singh Vs. State of Himachal

Pradesh, wherein it came to be ruled that in the absence of specific

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averment in the complaint with regard to day-to-day functioning and

over-all control of the person, proposed to be held vicariously liable,

no complaint is maintainable against such person and prosecution

launched beyond prescribed period of limitation is also not tenable.

Mr. Bawa, learned Senior Counsel for the petitioner, further argued

that there is no whisper in the complaint with regard to role, if any,

played by accused No.2 to 6 in day to day affairs of the company, as

such, complaint deserves to be quashed and set aside. He further

submitted that though aforesaid grounds/objections were very much

taken at the behest of accused at the time of framing of notice of

accusation, but court below failed to take note of them at the relevant

time, as such, order dated 17.01.2020, thereby putting notice of

accusation to the accused, is also not sustainable in the eye of law.

7. To the contrary, Mr. Parmod Singh Thakur, learned

counsel for the complainant, while supporting the impugned order

dated 17.01.2020 (Annexure P-1), vehemently argued that present

petition is not maintainable, rather same deserves outright rejection

because the accused have not approached Court with clean hands.

He submitted that grounds, otherwise sought to be raised through

instant petition, already stand adjudicated by this Court vide judgment

dated 25.02.2016 passed by this Court in Cr.MMO No.150 of 2015.

He submitted that in afore judgment, this Court had already held that

since company has been impleaded as an accused, omission, if any,

8

on the part of the complainant to specifically implead the company

through natural person, is merely a curable defect and same can be

rectified at any stage of the trial. He further submitted that “whether

accused No.2 to 6 were incharge of the company or whether they are

responsible for the conduct of business of the company” shall be

decided by the learned trial Court in totality of evidence collected on

record by the respective parties. Lastly, Mr. Thakur, submitted that

otherwise also, present petition deserves dismissal on the ground of

delay. He submitted that principles of laches as well as res judicata

are clearly attracted in the present case. He submitted that though

summoning order, which has been sought to be quashed, was passed

in the year 2013 and thereafter, notice of accusation was put to the

accused on 17.01.2020, but present petition has been filed on

20.10.2021 that too without rendering any plausible explanation qua

delay.

8. Having heard learned counsel for the parties and perused

material available on record, this Court finds that complaint as well as

summoning order, as detailed hereinabove, have been sought to be

quashed through instant proceedings filed under Section 482 Cr.P.C

on the ground that accused could not have been prosecuted being

Directors of the company without there being impleadment of the

company namely M/s Tara Business Group Pvt. Ltd. Though in the

instant case, complaint under Section 138 of the Act filed by the

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petitioner (Annexure P-3) reveals that company i.e. M/s Tara

Business Group Pvt. Ltd., Thakur Vatika, Khalini, Shimla, Himachal

Pradesh, has been arrayed as accused No.2, but since afore

company has not been impleaded through natural person, argument

has been raised at the behest of the petitioner that impleadment of

company in afore capacity cannot be said to be a valid impleadment.

If it is so, complaint lodged at the behest of the complainant cannot be

said to be maintainable against the accused, who have been

otherwise impleaded in the capacity of Directors of the company

named hereinabove. Besides above, it is also argued at the behest of

accused that since there is no specific averment in the complaint with

regard to control of the accused in day-to-day affairs of accused

No.1-company, complaint filed against him is not maintainable.

9. True it is that in terms of Section 141 of the Act as well as

law laid down by the Hon’ble Apex Court in number of judgments as

pressed into service by learned Senior Counsel for the accused,

Directors of company cannot be prosecuted in a case filed under

Section 138 of the Act without there being impleadment of the

company. It is also well settled that to maintain complaint under

Section 138 of the Act against the Directors of the company, it is

incumbent upon the complainant to make specific averment with

regard to control of the Directors, who have been made accused, in

day-to-day affairs of the company. Since both the aforesaid points

10

raised at the behest of the accused are well settled and there is no

quarrel qua the same, this Court finds no reason to elaborate upon

the same and refer these judgments in detail. However, question,

which needs to be determined in the case at hand, is, “whether afore

pleas raised at the behest of the accused for setting aside the

complaint, summoning order as well as notice of accusation can be

permitted to be raised at this stage, especially when, this Court, while

passing judgment dated 25.02.2016 in Cr.MMO No.150 of 2015, titled

as Rajeshwar Sabarwal & Ors. Vs. M/s Royal Apple Merchants,

has already decided these issues?”

10. Pleas otherwise sought to be raised in the instant petition

for quashing the complaint as well as consequential proceedings

stand negated by the afore judgment dated 25.02.2016 in the case

detailed hereinabove. Afore judgment has attained finality because

admittedly no appropriate proceedings in appropriate court of law

were ever initiated to lay challenge to the aforesaid judgment, rather

after passing of aforesaid judgment, Court below, having taken note

of observations made in afore judgment passed by this Court, not only

decided the issue with regard to maintainability of complaint against

the accused without there being impleadment of the accused-

company through natural person, but it also proceeded to frame

notice of accusation vide order dated 17.01.2020 (Annexure P-1). If

order dated 17.01.2020 laid challenge in the instant proceedings is

11

perused in its entirety, it clearly reveals that same has been passed

taking note of findings/observations made by this Court vide judgment

dated 25.02.2016 passed in Cr.MPM No. 1165 of 2012, which was

admittedly filed by the accused. Since vide judgment dated

25.02.2016, this Court had observed that omission, if any, on the part

of the complainant to sue company through natural person could be

rectified in accordance with law, court below, vide order dated

05.08.2019, having taken note of the fact that accused No.2 to 6 are

the directors of the company and cheque was signed by accused

No.2, returned a finding that at this prima facie stage, Court will

presume that until and unless it is proved that accused No.1 i.e.

company, is being represented through accused No.2 and also by

accused No.3 to 6, being Directors of the company. While returning

aforesaid findings, trial Court also negated the pleas set up at the

behest of accused that they were not responsible for day to day

affairs of the company and therefore, were not in a position to

represent accused No.1. Afore order dated 05.08.2019 never came to

be laid challenge in the appropriate proceedings, as a result thereof,

same has attained finality.

11. Though while referring to the various judgments, as have

been taken note hereinabove, an attempt came to be made at the

behest of learned Senior Counsel for the accused that judgment

dated 25.02.2016 passed by this Court in Cr.MMO No.150 of 2015,

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titled as Sh. Rajeshwer Sabharwal son of Sh. Om Prakash

Sabharwal and others was not based upon proper appreciation of

law on the point, but this Court is of the view that correctness of the

afore judgment passed by this Court in proceedings detailed

hereinabove cannot be examined/ ascertained in the instant

proceedings, rather for that purpose, accused ought to have filed

appropriate proceedings in the appropriate Court of law, laying therein

challenge to afore judgment dated 25.02.2016. Careful perusal of

orders dated 05.08.2019 and 17.01.2020 clearly reveals that same

are based upon observations/findings given by this Court in judgment

dated 25.02.2016, as such, no fault can be found therein.

12. Leaving everything aside, this Court finds that pleas

otherwise sought to be raised in the instant petition for quashing the

complaint as well as consequential orders, already stood negated by

the competent Court of law in the appropriate proceedings vide

judgment dated 25.02.2016, but thereafter accused chose to remain

silent and now, after inordinate delay of five years, have attempted to

rake up the decided issues by laying challenge to order dated

17.01.2020, thereby putting notice of accusation to the accused.

Having noticed facts, as detailed hereinabove, this Court is persuaded

to agree with learned Senior Counsel for the accused, that petition at

hand is nothing but a smart/clever move at the behest of the accused

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to negate the findings given by this Court vide judgment dated

25.02.2016 in Cr.MMO No.150 of 2015, which has attained finality.

13. At the first instance, accused, by way of filing Cr.MMO

No.150 of 2015, titled as Rajeshwar Sabarwal & Ors.M/s Royal

Apple Merchants, laid challenge to order dated 18.11.2013 passed

by learned Judicial Magistrate First Class-3, Shimla, Himachal

Pradesh, thereby issuing process against them. As has been noticed

hereinabove, similar pleas were raised in afore proceedings, but

same came to be negated by this Court vide judgment dated

25.02.2016. After passing of aforesaid judgment, accused subjected

themselves to the jurisdiction of learned trial Court as an accused and

thereafter, vide order dated 17.01.2020, Court below proceeded to put

notice of accusation to them. If afore order is seen, again similar pleas

as have been sought to be raised in the instant proceedings, came to

be raised, however, Court below rejected the same in terms of

findings/observations made by this Court in judgment dated

25.02.2016. Since for the reasons best known to the accused, they

failed to lay challenge to order dated 25.02.2016 passed in Cr.MMO

No.150 of 2015, an attempt has now been made by the accused to

again rake up the decided issue by laying challenge to order dated

17.01.2020, which admittedly has been passed by court below in

terms of findings/observations made by this Court in afore judgment.

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14. Otherwise also, this Court finds that main ground raised

for rejection of the complaint is that impleadment of company without

there being natural person cannot be said to be impleadment of

company, if it is so, prosecution of directors of the company, i.e.

accused Nos. 2 to 6, without proper impleadment of the company

would not be permissible. Though in terms of judgment passed by the

Hon’ble Apex Court, afore pleas taken at the behest of accused

appear to be justifiable, but when same are tested on the touchstone

of peculiar facts and circumstances of the case, coupled with the fact

that in terms of observations made by this Court in its judgment dated

25.02.2016, omission to implead company through natural person

could be rectified in accordance with law and thereafter, vide order

dated 05.08.2019, accused No. 1 company was considered to be

impleaded through accused No. 2, and accused No. 3, who were

otherwise impleaded in their capacity as Directors of the company,

they do not deserve to be accepted. Complaint otherwise sought to be

quashed cannot be quashed on afore ground. Similarly, having

carefully perused averments contained in the complaint filed under

Section 138 of the Act as well as preliminary evidence adduced on

record on behalf of the complainant by way of affidavit at the time of

filing of complaint, this Court is not persuaded to agree with learned

Senior Counsel for the accused that there are no specific averments

with regard to control of accused No.2 to 6, being directors, on the

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day to day affairs of the company. In para 14 of the complaint, it has

been specifically averred that “accused/ respondent no. 1, being the

company, accused /respondent No. 2, being the managing director

and signatory of the cheque and accused/ respondents No. 3 to 6,

being directors are responsible for the day to day affairs of the

company, are liable for the dishonour of the cheque under

Section-138 read with Section 141 and 142 of the Act. Besides this,

since the above named accused/ respondents had directly

approached the complainant for the sale of the apples and had dealt

with the complainant, they are also liable on the principle of vicarious

liability.”

15. Besides above, complainant, in his preliminary evidence,

tendered by way of affidavit has specifically stated that accused No.2

to 6 formed a private limited company in the name and style of M/s

Shri Tara Buisness Group Pvt. Ltd., having its office at Thakur Vatika,

Khalini, Shimla, Himachal Pradesh, and registered office at H.No.C-4,

New Verma Apartments, Dayton Bear Khana, PS Chotta Shimla,

Shimla, Himachal Pradesh. It has been categorically stated in afore

affidavit that accused No.2 to 6 are directors of the company and

have been actively participating in the business of the company.

During the apple season from July to December, 2012, the accused

No.2 to 6 contacted the complainant at Shimla as Managing Director

and Directors of the above named company i.e. Shri Tara Business

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Group Ltd. for carrying on the business of apples and other fruits with

it. It has been further stated that accused No.1 to 6 purchased apples

from the complainant on credit basis on different dates from August

2012 to October, 2012. They also assured the complainant that they

would make regular payments and the outstanding balance amount, if

any, would be cleared by the end of December, 2012. Complainant

has specifically averred in the affidavit, which is admittedly to be read

in conjunction with the complaint, that accused respondents No.1 to 6

purchased 36,952 apple boxes from the complainant for an amount of

Rs.4,90,80,459/- and paid only Rs.1,68,10,000/- upto 22.05.2013.

Thus, the accused were liable to make the balance payment of Rs.

3,22,70,459/- to the complainant. Though having taken note of

specific finding given by the court qua afore issue in its earlier

judgment dated 25.02.2016, there was otherwise no occasion for this

Court to go into aforesaid question, but even otherwise having

carefully perused averments contained in the complaint as well as

affidavit furnished at the stage of preliminary evidence, plea raised in

that regard by the accused deserves outright rejection.

16. While referring to para 11 of preliminary evidence,

learned Senior Counsel for the accused, also attempted to argue that

complaint filed at the behest of the complainant is not maintainable as

it was filed prematurely. He submitted that as per own case of the

complainant, complainant had issued legal notice to the accused

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through his counsel on 16.09.2013 through registered AD letter within

stipulated period, as mentioned under the Act, thereby calling upon

the accused to pay sum of Rs.30,00,000/-, being the amount of the

cheque issued by the accused, within the statutory period of fifteen

days from the receipt of notice, but thereafter without waiting for 45

days to elapse, complainant proceeded to file complaint on

30.07.2013. He submitted that since no specific proof with regard to

service of legal notice was available with the complainant, service of

notice upon the accused could have been presumed after the expiry

of 30 days from the date of issuance of legal notice and thereafter,

further 15 days’ time was required to be given to the accused for

making the payment. He submitted that no proceedings under Section

138 of the Act could have been filed by the complainant before expiry

of 45 days from the date of issuance of notice. Though aforesaid

submission made at the behest of accused appears to be legally

correct, but “whether complainant had received intimation, if any, with

regard to service of notice or he proceeded to lodge complaint by

presuming service of notice upon the accused within a period of 30

days” are the questions to be decided by the Court below in totality of

evidence led on record by the respective parties. Moreover, this Court

finds that no such ground has been taken by the accused at the time

of laying challenge to summoning order or at the time of framing of

notice of accusation. Even in the instant proceedings, no such ground

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has been raised in the grounds of the petition, rather during

arguments, learned Senior Counsel for the accused made aforesaid

argument in a most casual manner. Since no specific evidence has

been adduced on record by the accused suggestive of the fact that

complainant has filed complaint on the basis of presumed service of

legal notice upon the accused, plea raised at the behest of the

accused for quashing the complaint on the ground that it was filed

prematurely cannot be considered. Though para 11 of the preliminary

evidence suggests that legal notice was issued by the complainant to

the accused through his counsel on 16.09.2013 through registered

AD within stipulated time, but there is nothing to suggest that “whether

same was actually served or complaint was filed on the basis of

presumed service of legal notice after expiry of 30 days from the date

of issuance of the notice?” Had complainant specifically averred in the

complaint that though he had issued notice to the accused on

16.09.2013, but same was received back unserved, as such, accused

shall be presumed to have been served after 30 days from the date of

issuance of the notice, accused could have taken a plea with regard

to premature filing of the complaint, but since no specific plea was

taken by the accused that they had not received the legal notice,

coupled with the fact that pursuant to the issuance of summons vide

order dated 18.11.2013, the accused subjected themselves to the

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jurisdiction of the court below, they are otherwise estopped from

raising such a plea.

17. Consequently, in view of the detailed discussion made

hereinabove as well as law taken into consideration, this Court finds

no merit in all the petitions and accordingly, the same are dismissed.

Interim order, if any, stands vacated. All pending applications, stand

disposed of.

18. Learned counsel for the parties undertake to cause

presence of their respective clients before Court below on

20.06.2026, enabling the Court below to proceed with the matter.

Record of court below be sent back forthwith.

(Sandeep Sharma),

Judge

June 01, 2026

(sunil)