2018 (1) TMI 1644 - HC - Indian Laws

Petition dismissed, complaint amended to include company as accused. Notice to Director sufficient. Trial court directed to rectify.

The court dismissed the petition, upholding the decision to allow amending the complaint to include the company as an accused. The court found the ... Dishonor of CHeque - insufficiency of funds - fastening of vicarious liability without impleading company as party in the complaint - HELD THAT:- From the perusal of Section 2(d) of the Cr.P.C. it is evident that in a complaint if any allegation against any person is mentioned, with a view to take action against him, he will be deemed as an accused of the complaint. From the definition of ‘complaint’ it does not appear that only when the name of person is mentioned in the cause title of the complaint, then only that person shall be treated as accused of that complaint. Although there is no provision in the Act and Code of Criminal Procedure to permit the applicant to amend the complaint, but there is no bar in the Code of Criminal Procedure as well as in the Negotiable Instrument Act against permitting the complainant to amend his complaint. Where, there is no bar in the Act and in the Code of Criminal Procedure, this Court in the interest of justice may permit the complainant to amend the complaint. It is obvious from the scheme of Section 138 that each one of the ingredients flows from a document which evidences the existence of such an ingredient. The only other ingredient which is required to be proved to establish the commission of an offence under Section 138 is that in spite of the demand notice referred to above, the drawer of the cheque failed to make the payment within a period of 15 days from the date of the receipt of the demand. A fact which the complainant can only assert but not prove, the burden would essentially be on the drawer of the cheque to prove that he had in fact made the payment pursuant to the demand. While in the instant case there is no delay on the part of complainant/non-applicant No.1. Because, complainant had already mentioned the name of applicant no.2/company in the complaint from the beginning and prayed to the Court that cognizance be taken against the applicant no.1 as well as against the applicant no.2/company, which clearly appears from the prayer clause of the complaint - Section 319 of the Cr.P.C. would operate in a situation where during the trial and enquiry, it appears to the trial Court whether as a Magistrate or a Sessions Judge that some other persons are also involved in the commission of the offence, for which he is holding the trial, he could invoke Section 319 of the Cr.P.C. for summoning them to be arrayed as an accused. There is no bar under Section 190 of the Cr.P.C. that once the process is issued against some accused, on the next date, the Magistrate cannot issue process to some other person against whom there is some material on record - Petition dismissed. Issues Involved:1. Maintainability of the revision petition against the interim order.2. Validity of the complaint under Section 138 of the Negotiable Instruments Act without impleading the company as an accused.3. Legality of amending the complaint to include the company as an accused.4. Requirement of notice to the company before filing the complaint.Detailed Analysis:1. Maintainability of the Revision Petition:The applicants contended that the order dated 04/12/2015 by the JMFC was an interim order, against which revision is not maintainable. However, the court observed that the order refusing to take cognizance against the company falls under Section 203 of the Cr.P.C. and is revisable. The court cited the case of Urmila Devi Vs. Yudhvir Singh, which held that an order deciding to summon an accused is quasi-final and can be challenged under Section 397 Cr.P.C.2. Validity of the Complaint under Section 138 of the Negotiable Instruments Act:The applicants argued that the complaint against the Director without impleading the company is not maintainable, relying on the case of Aneeta Hada Vs. Godfather Travels & Tours Pvt. Ltd. The court acknowledged that the cheque was issued on behalf of the company and emphasized that the complaint must include the company as an accused. The court found that the initial complaint did not mention the company in the cause title, but the body of the complaint indicated that the company was involved.3. Legality of Amending the Complaint:The complainant sought to amend the cause title to include the company as an accused. The court referred to the case of S.R. Sukumar Vs. S. Sunaad Raghuram, which allows amendments to cure legal infirmities if no prejudice is caused. The court held that the complainant is entitled to amend the complaint to include the company, as the body of the complaint already mentioned the company’s involvement.4. Requirement of Notice to the Company:The applicants contended that no notice was sent to the company, which is a prerequisite under Section 138. The court referred to the cases of M/s Bilakchand Gyanchand Co. and Rajneesh Aggarwal Vs. Amit J. Bhalla, which held that notice to the Managing Director, who is the signatory of the cheque, suffices as notice to the company. The court concluded that the notice sent to the Director was adequate.Conclusion:The court dismissed the petition, upholding the Additional Sessions Judge's decision to allow the amendment of the complaint to include the company as an accused. The court found that the complaint initially included the company in its body and that notice to the Director was sufficient for the company. The court emphasized that the trial court could rectify its earlier omission to take cognizance against the company.