Company non-joinder in cheque dishonour complaints may be cured by amendment when pleadings show foundational involvement.

In a prosecution under Section 138 read with Section 141 of the Negotiable Instruments Act, the absence of the company as an accused is not automatically fatal where the complaint, read as a whole, contains the foundational averments showing the company's involvement and the director's responsibility. The court treated the omission as a curable infirmity, holding that a formal amendment may be allowed where the defect is inadvertent and no prejudice is caused. The complaint was therefore not rejected on the ground of non-joinder alone, and the matter was permitted to proceed after amendment of the pleading.

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Issues: (i) Whether a complaint under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881 is maintainable when the company is not arrayed as an accused though the complaint contains averments against the company and its director. (ii) Whether the omission to implead the company is a curable infirmity permitting amendment of the complaint.

Issue (i): Whether a complaint under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881 is maintainable when the company is not arrayed as an accused though the complaint contains averments against the company and its director.

Analysis: Prosecution for an offence by a company under Section 141 rests on vicarious liability, and arraigning the company as an accused is generally imperative. At the same time, where the complaint, read as a whole, discloses the role of the company and the director and contains the foundational averments necessary to constitute the offence, the defect is not necessarily fatal at the threshold. The decisive question is whether the pleading discloses the company's involvement and the director's responsibility in the transaction so as to sustain the complaint at least prima facie.

Conclusion: The complaint was not liable to be rejected as inherently non-maintainable merely because the company had not been named, since the pleadings disclosed the company's involvement and the director's role.

Issue (ii): Whether the omission to implead the company is a curable infirmity permitting amendment of the complaint.

Analysis: A complaint may be amended to cure a simple formal defect or other curable infirmity if no prejudice is caused to the opposite side. Where the underlying allegations already indicate the company as the principal drawer and the omission is due to inadvertence, the defect can be corrected by a formal amendment rather than by terminating the prosecution. The allowance of such an amendment preserves the substance of the prosecution and avoids defeat of the complaint on a merely technical ground.

Conclusion: The omission to array the company was a curable infirmity and the complainant was entitled to amend the complaint.

Final Conclusion: The acquittal and dismissal of the complaint were set aside, and the matter was directed to proceed after allowing amendment of the complaint in accordance with law.

Ratio Decidendi: In a prosecution under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881, absence of the company as an accused is not invariably fatal where the complaint otherwise contains the necessary averments showing the company's involvement and the defect can be cured by a formal amendment without prejudice.

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