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Telangana High Court
M/S.Bombay Colour Agency vs State Of Telangana, on 20 August, 2025
THE HONOURABLE SMT. JUSTICE K. SUJANA CRIMINAL PETITION Nos.4595, 4242, 4243 AND 4249 of 2025 COMMON ORDER:
Since the issue involved in all these criminal petitions
are one and the same, they are being heard together and being
disposed of by way of this common order.
2. These Criminal Petitions are filed seeking to set aside
the order dated 19.11.2024 passed in Crl.M.P.Nos.30, 33, 28
and 32 of 2023 in C.C.Nos.204885, 204894, 205248 and
204895 of 2018, respectively, by the learned XVI Additional
Judge-cum-XX Additional Chief Judicial Magistrate, City Civil
Court, Secunderabad.
3. The brief facts of the cases are that the
petitioner/complainant in all the cases had filed petitions,
respectively, under Section 319 Cr.P.C. seeking to include Mr.
Arun Kumar Agarwal, Executive Director of the accused
company, as accused No.3 in the original complaint filed
under Section 138 of the Negotiable Instruments Act, stating
that though notices were issued to both the Managing Director
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and Executive Director before filing the complaint, they were
not made parties in their personal capacities, and that since
the Executive Director had signed the cheque on behalf of the
company, he was a necessary party for adjudication.
4. The respondents/accused opposed the petition
contending that Section 319 Cr.P.C. was inapplicable to a
complaint under Section 138 N.I. Act, that the complaint
lacked the mandatory averments under Section 141 N.I. Act,
that the statutory time limits under Sections 138 and 142 N.I.
Act had already expired, and that the petition was filed with
mala fide intent to abuse process.
5. The trial Court, after considering the rival submissions
and relying on various Supreme Court decisions, vide order
dated 19.11.2024, dismissed the petitions holding that the
petitioner was required to plead all mandatory ingredients of
Sections 138 and 141 N.I. Act in the original complaint,
including specific averments regarding vicarious liability, and
that the proposed accused could not be added at the stage of
cross-examination of PW1 when such requirements were not
complied with and that the complaint, filed in the year 2018,
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did not satisfy these statutory requirements, and the present
petition filed in the year 2023 was devoid of merit. Aggrieved
thereby, the petitioner filed the present criminal petitions.
6. Heard Sri Vishal Kumar Jain, learned counsel
appearing on behalf of the petitioner as well as Sri M.
Vivekananda Reddy, learned Assistant Public Prosecutor
appearing on behalf of respondent No.1 – State and Sri
Sharad Sanghi, learned counsel appearing on behalf of
respondent Nos.2 to 4.
7. Learned counsel for the petitioner had submitted that
the order of the Magistrate was improper, perverse in law, and
untenable and that the trial Court had not properly examined
the records, including the initial notice and documents filed
with the complaint, and had therefore erred in passing the
impugned order. He further submitted that under Section 141
of the N.I. Act, when an offence under Section 138 was
committed by a company, the persons in charge of and
responsible for the conduct of its business should also be
impleaded as accused along with the company.
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8. Learned counsel for the petitioner contended that the
order was erroneous, mechanical, and based on assumptions,
and was contrary to settled principles laid down by the
Hon’ble Supreme Court and various High Courts. He argued
that there was no doubt about the involvement of the
proposed party, as he was the person who had signed the
cheque, thereby having a direct nexus with the offence, which
could not be ignored. He further contended that the corpus
delicti against the proposed accused had already been
established, yet the Court had unjustly dismissed the
application and that the trial Court had failed to consider the
legal precedents cited and had dismissed the petition under
Section 319 Cr.P.C. solely on the ground of delay, which was
not legally sustainable. Therefore, he prayed the Court to set
aside the orders of the trial Court by allowing these criminal
petitions.
9. In support of his submissions, he relied upon the
judgment of the Hon’ble Supreme Court in Sukhpal Singh
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Khaira v. The State of Punjab 1, wherein in paragraph No.37,
it is held as follows:
“37. We have also kept in view the point by point
analysis of the object and power to be exercised
under Section 319CrPC, as has been indicated in
SCC para 15 : SCC OnLine SC para 34 of Manjeet
Singh v. State of Haryana [Manjeet Singh v. State of
Haryana, (2021) 18 SCC 321 : 2021 SCC OnLine SC
632] .
38. For all the reasons stated above, we answer the
questions referred as hereunder.
39.(I) Whether the trial court has the power under
Section 319CrPC for summoning additional accused
when the trial with respect to other co-accused has
ended and the judgment of conviction rendered on
the same date before pronouncing the summoning
order?
The power under Section 319CrPC is to be invoked
and exercised before the pronouncement of the
order of sentence where there is a judgment of
conviction of the accused. In the case of acquittal,
the power should be exercised before the order of
acquittal is pronounced. Hence, the summoning
order has to precede the conclusion of trial by
imposition of sentence in the case of conviction. If
the order is passed on the same day, it will have to
be examined on the facts and circumstances of each1
Criminal Appeal No.885 of 2019
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Crl.P.No.4595 of 2025 and batchcase and if such summoning order is passed either
after the order of acquittal or imposing sentence in
the case of conviction, the same will not be
sustainable.
40.(II) Whether the trial court has the power under
Section 319CrPC for summoning additional accused
when the trial in respect of certain other absconding
accused (whose presence is subsequently secured)
is ongoing/pending, having been bifurcated from
the main trial?
The trial court has the power to summon additional
accused when the trial is proceeded in respect of the
absconding accused after securing his presence,
subject to the evidence recorded in the split-up
(bifurcated) trial pointing to the involvement of the
accused sought to be summoned. But the evidence
recorded in the main concluded trial cannot be the
basis of the summoning order if such power has not
been exercised in the main trial till its conclusion.
41.(III) What are the guidelines that the competent
court must follow while exercising power under
Section 319CrPC?
41.1. If the competent court finds evidence or if
application under Section 319CrPC is filed
regarding involvement of any other person in
committing the offence based on evidence recorded
at any stage in the trial before passing of the order
on acquittal or sentence, it shall pause the trial at
that stage.
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need or otherwise to summon the additional
accused and pass orders thereon.
41.3. If the decision of the court is to exercise the
power under Section 319CrPC and summon the
accused, such summoning order shall be passed
before proceeding further with the trial in the main
case.
41.4. If the summoning order of additional accused
is passed, depending on the stage at which it is
passed, the court shall also apply its mind to the
fact as to whether such summoned accused is to be
tried along with the other accused or separately.
41.5. If the decision is for joint trial, the fresh trial
shall be commenced only after securing the
presence of the summoned accused.
41.6. If the decision is that the summoned accused
can be tried separately, on such order being made,
there will be no impediment for the court to
continue and conclude the trial against the accused
who were being proceeded with.
41.7. If the proceeding paused as in para 41.1
above, is in a case where the accused who were
tried are to be acquitted, and the decision is that
the summoned accused can be tried afresh
separately, there will be no impediment to pass the
judgment of acquittal in the main case.
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main trial till its conclusion and if there is a split-up
(bifurcated) case, the power under Section 319CrPC
can be invoked or exercised only if there is evidence
to that effect, pointing to the involvement of the
additional accused to be summoned in the split-up
(bifurcated) trial.
41.9. If, after arguments are heard and the case is
reserved for judgment the occasion arises for the
Court to invoke and exercise the power under
Section 319CrPC, the appropriate course for the
court is to set it down for re-hearing.
41.10. On setting it down for re-hearing, the above
laid down procedure to decide about summoning;
holding of joint trial or otherwise shall be decided
and proceeded with accordingly.
41.11. Even in such a case, at that stage, if the
decision is to summon additional accused and hold
a joint trial the trial shall be conducted afresh and
de novo proceedings be held.
41.12. If, in that circumstance, the decision is to
hold a separate trial in case of the summoned
accused as indicated earlier:
(a) The main case may be decided by pronouncing
the conviction and sentence and then proceed
afresh against summoned accused.
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(b) In the case of acquittal the order shall be passed
to that effect in the main case and then proceed
afresh against summoned accused.”
10. On the other hand, learned counsel for the respondent
No.4 submitted that the petitions filed by the petitioner were
legally untenable and liable to be dismissed. He contended
that Section 319 Cr.P.C. could not be invoked to add a person
as an accused when the original complaint itself failed to
comply with the mandatory provisions of Sections 138 and
141 of the Negotiable Instruments Act. He further submitted
that the original complaint, filed in the year 2018, did not
contain the requisite averments regarding vicarious liability or
the specific role of the Executive Director, and therefore the
proposed accused could not be added at such a belated stage.
He further submitted that the petitioner had deliberately
delayed filing the petition till 2023, long after the statutory
time limits under Sections 138 and 142 N.I. Act had expired,
reflecting mala fide intent and an attempt to abuse the
process of law. He emphasized that the trial Court had rightly
examined the records, including the initial notice and
documents, and had passed the impugned order in
accordance with settled law. He contended that merely
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signing a cheque on behalf of the company did not
automatically render the Executive Director personally liable
in the absence of specific averments in the complaint
demonstrating his personal role in the offence. The counsel
submitted that the petitioner had failed to establish a prima
facie case against the proposed accused and that allowing the
petition would prejudice the respondents and undermine
statutory safeguards. Therefore, he prayed the Court to
dismiss these criminal petitions.
11. In the light of the submissions made by both the
learned counsel and a perusal of the material available on
record, it appears that the petitioner had sought to invoke
Section 319 Cr.P.C. to implead Mr. Arun Kumar Agarwal,
Executive Director of the accused company, as accused No.3
in complaints filed under Section 138 of the Negotiable
Instruments Act, 1881, claiming that he was a signatory to
the cheque and, therefore, directly involved in the alleged
offence.
12. However, it is well-established that the provisions of
Section 319 Cr.P.C., which empower a court to summon
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additional accused if they appear to be guilty of an offence, are
of a general nature and are not applicable to proceedings
initiated under Section 138 of the N.I. Act. As held by the
Hon’ble Supreme Court in N. Harihara Krishnan v. J.
Thomas 2, proceedings under Section 138 are complaint-
driven, governed by a special statutory scheme, and the
procedure under Cr.P.C. can only apply in a limited and
supplementary manner. Section 138 offences are person-
specific and subject to strict statutory requirements, including
mandatory timelines for issuing notices and filing complaints,
as provided under Sections 138 and 142 of the N.I. Act.
13. The original complaint, filed in the year 2018, did not
contain the mandatory averments under Section 141 N.I. Act
regarding vicarious liability or the specific role of the
Executive Director in the management and conduct of the
company’s business at the relevant time. Mere execution of a
cheque by the proposed accused, without pleading these
essential facts in the original complaint, is insufficient to
fasten personal liability. The statutory scheme requires that
the payee clearly identify the drawer and allege, with factual
2
(2018) 13 SCC 663
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specificity, that the person was in charge of and responsible
for the conduct of the company’s business, which was not
done in the present case.
14. Furthermore, the application under Section 319 Cr.P.C.
was filed only in the year 2023, almost five years after the
original complaint, well beyond the statutory limitation
prescribed under Section 142 N.I. Act. The petitioner has
failed to provide sufficient cause or explanation for such an
inordinate delay. Seeking to implead a new accused at the
stage of cross-examination of PW1, without compliance with
the statutory requirements, not only violates the procedural
safeguards but also amounts to an abuse of process of law.
15. The trial Court, after considering the submissions of
both parties and relying on authoritative judgments, rightly
held that the petitioner could not bypass the statutory scheme
of the N.I. Act by invoking Section 319 Cr.P.C. It also observed
that allowing such impleadment at a late stage would
undermine the procedural integrity of the proceedings and set
a precedent contrary to settled law. Further, the judgment
relied upon by the petitioner is not applicable to the facts of
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the case on hand. Therefore, there is no illegality in the
orders of the trial Court and the trial Court rightly dismissed
the petitions. However, this Court does not find any merit in
the criminal petitions to set aside the order of the trial Court
and the same are liable to be dismissed.
16. Accordingly, these criminal petitions are dismissed
confirming the order dated 19.11.2024 passed in
Crl.M.P.Nos.30, 33, 28 and 32 of 2023 in C.C.Nos.204885,
204894, 205248 and 204895 of 2018, respectively, by the
learned XVI Additional Judge-cum-XX Additional Chief
Judicial Magistrate, City Civil Court, Secunderabad.
Miscellaneous applications, if any pending, shall stand
closed.
_______________
K. SUJANA, J
Date: 20.08.2025
SAI
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