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of <h1>Petition dismissed for failure to include company as accused under Section 138</h1> The court dismissed the petition as the complaint under Section 138 of the Negotiable Instruments Act, 1881, was not maintainable without impleading the ... Dishonor of Cheque - impleadment of a company before vicarious liability - Section 141 of the N.I. Act - HELD THAT:- In the light of the observations in ANEETA HADA VERSUS GODFATHER TRAVELS & TOURS (P.) LTD. [2012 (5) TMI 83 - SUPREME COURT] and the reiteration of the view taken in SMS PHARMACEUTICALS LTD. VERSUS NEETA BHALLA [2005 (9) TMI 304 - SUPREME COURT], it is clear that the complaint must aver in clear terms, the commission of an offence by the Company. If such averment was there in the complaint and the only infirmity is the naming of the Company in the memo of parties, it could be said that the infirmity is only a minor infirmity which can be rectified by permitting amendment. But when there is no averment at all in respect of the Company, amendments as sought by the petitioner would be a complete overhauling of the first complaint and a clear attempt to overcome the foundational infirmity of the absence of any offence having been committed by the Company on the averments in the complaint. There is no pleading which suggests that the Company had committed any offence. When no offence is attributable to the Company, it is not possible to attach liability on the Managing Director by the deeming provisions of Section 141 of the N.I. Act. Amendments of simple technical infirmities alone can be allowed but not the filing of a fresh complaint with improved pleadings, in the garb of amendment. Petition dismissed. 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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