Petition dismissed for failure to include company as accused under Section 138

The court dismissed the petition as the complaint under Section 138 of the Negotiable Instruments Act, 1881, was not maintainable without impleading the company as an accused. The court refused to allow the petitioner to amend the complaint to include the company, emphasizing that vicarious liability can only be imposed on company officers if the company is prosecuted. The court held that the amendment would fundamentally alter the complaint, and therefore, it was not permitted.

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Issues Involved:
1. Whether the complaint under Section 138 of the Negotiable Instruments Act, 1881, can be maintained without impleading the company as an accused.
2. Whether the petitioner should be allowed to amend the complaint to include the company as an accused.

Issue-wise Detailed Analysis:

1. Impleading the Company as an Accused:
The petitioner filed a complaint under Section 138 of the Negotiable Instruments Act, 1881, against the respondent, who was the Managing Director of M/s Accura Care Pharmaceuticals Pvt. Ltd., for the dishonor of cheques totaling Rs.16,95,000. The Trial Court dismissed the complaint on the grounds that the company was not impleaded as an accused, which is a mandatory requirement under Section 141 of the N.I. Act, as established in the Supreme Court judgment of Aneeta Hada v. Godfather Travels & Tours (P) Ltd., (2012) 5 SCC 661. The Appellate Court upheld this decision.

The petitioner's counsel argued that the reliance on Aneeta Hada was misplaced and cited various judgments to support the contention that the non-inclusion of the company was a curable defect. However, the court found these arguments unconvincing, noting that Aneeta Hada’s judgment was exhaustive and had considered relevant precedents, including U.P. Pollution Control Board vs Modi Distillery & Ors, Rajneesh Aggarwal v. Amit J. Bhalla, and Bilakchand Gyanchand Co. v. A. Chinnaswami. The court emphasized that the primary liability for the offence under Section 138 lies with the company, and vicarious liability can only be imposed on its officers if the company is prosecuted.

2. Amendment of the Complaint:
The petitioner sought to amend the complaint to include the company as an accused, citing the Supreme Court judgment in S.R. Sukumar v. S. Sunaad Raghuram, which allowed amendments to cure technical defects. However, the court distinguished the facts of S.R. Sukumar, noting that in that case, the Magistrate had not taken cognizance, and the amendment was related to a subsequent event. In contrast, the present case involved a foundational defect, as the complaint did not aver any offence committed by the company.

The court also referred to the High Court of Madhya Pradesh's decision in Manish Kalani & Another v. Housing & Urban Development Corporation Ltd. (Hudco) & Another, where an amendment was permitted to include the company due to a minor infirmity. However, the court found this case inapplicable, as the present complaint lacked any averments against the company.

The court concluded that allowing the amendment would amount to overhauling the complaint and overcoming the foundational infirmity of the absence of any offence by the company. The court reiterated that Section 141 of the N.I. Act requires the company to be arraigned as an accused to impose vicarious liability on its officers.

Conclusion:
The court dismissed the petition, holding that the complaint was not maintainable without the company being impleaded as an accused. The court declined to permit the amendment, as it would not merely cure a technical defect but fundamentally alter the complaint. The judgment was ordered to be uploaded on the website forthwith.

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