TaxTMI 
TaxTMI 
2017 (4) TMI 827
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.... complaints filed under section 138 of the N.I. Act. 3. The applicant herein has been arraigned as an accused in her capacity as the authorized and responsible officer of a company by name B.M. Infrastructure Industries Pvt. Ltd.. The cheques in question were drawn by the husband of the applicant herein namely Mukeshbhai, original accused No.1 in the complaint. The applicant herein is sought to be fastened with the vicarious liability under section 141 of the N.I. Act. I am afraid both the complaints should fail in the absence of the company not being arraigned as an accused in the complaint. This issue is squarely covered by the decision of the Supreme Court in the case of Aneeta Hada vs. Godfather Travels & Tours Pvt. Ltd., (2012) 5 SCC 661. 4. At this stage, Mr. Hardik Shah, the learned counsel appearing for the complainant submitted that it was just a typographical error on the part of the complainant in not arraigning the company as an accused. Mr. Shah submits that, his client has moved an application before the court concerned under section 319 of the Cr.P.C to implead the company as an accused in the complaint. I am afraid the application under section 319 of the Cr.P....
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....ection 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138 : [Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period;] (c) no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138.] 38 The plain reading of the two sections referred to above would indicate that steps, for lodging of a complaint under Section 138 of the Act, are required to be taken within the time frame provided under Section 138 of the Act. As regards filing of a complaint for an offence under Section 138 of the Act, Section 142 of the Act, which deals with cognizance of offences punishable under Section 138, lays down a necessary precondition i.e. a written complaint by the payee or the holder of the cheque in due course and p....
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....rdered issue of process against the partners of the firm in the absence of the partnership firm being an accused? (III) Whether, after a period of almost twelve years, the complainant can file an application under Section 319 of the Cr.P.C. to implead the partnership firm as an accused to make the complaint maintainable and pray before the Magistrate to issue process to the firm as a legal entity? (IV) If the complainant is permitted to do so, could it not be said that indirectly he is substantially amending the complaint thereby changing the entire complexion of the same which is otherwise not permissible in law. (V) Could it be said that although the cognizance was taken in the year 2004, yet the impleading of the partnership firm, after twelve years, would be in consonance with Section 142(b) of the Act read with Clause (a)? To put it in other words, could it be said that the complaint against the partnership firm is made within one month from the date on which the cause of action arises under Clause (c) of Proviso to Section 138 of the Act i.e. on expiry of period of fifteen days from the date of receipt of notice of dishonour by the accused? ....
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....ing under it has the power of taking cognizance of the new case. It does not, however, say in what manner cognizance is taken by the Magistrate. The modes of taking cognizance are mentioned in section 190, and are apparently exhaustive. The question is, whether against the newly added accused, cognizance will be supposed to have been taken on the Magistrate's own information under S. 190(1)(c), or only in the manner in which cognizance was first taken of the offence against the accused..................The question is important, because the methods of inquiry and trial in the two cases differ. About the true position under the existing law, there has been difference of opinion, and we think it should be made clear. It seems to us that the main purpose of this particular provision is, that the whole case against all known suspects should be proceeded with expeditiously, and convenience requires, that cognizance against the newly added accused should be taken in the same manner as against the other accused. We, therefore, propose to re-cast S. 351 making it comprehensive and providing that there will be no difference in the mode of taking cognizance if a new person is added as an....
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....along with the accused persons and in such circumstances that person can also be tried together with the original accused subject to the conditions precedent that under the provisions of Section 319 of the Cr.P.C. which must appear from the evidence during the course of inquiry or trial that any other person than the original accused have also committed the alleged offence along with the original accused, then only, cognizance can be taken under the provisions of Section 319. 48 Let me give a simple illustration. Take a case where the partnership firm being a legal entity is an accused. The trial Court has taken cognizance and issued process against the partnership firm as a legal entity. In the course of the trial, it comes to the notice of the Court that one of the partners not being accused has committed an offence for which he could be tried together with other partners (coaccused), the Court would be justified in invoking Section 319 of the Cr.P.C. [See: Division Bench judgment in Satish Chand Singhal v. State of Gujarat, 2006 Cri. Law Journal 3854] 49 However, when the complaint itself is not maintainable in the absence of the partnership firm being a legal entity be....
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....1 SCC 228], the Supreme Court held that a right in law exists only and only when it has a lawful origin. 56 I am of the view that the application under Section 319 of the Cr.P.C. seeking impleadment of the partnership firm as an accused is more in the nature of a substantive amendment. There is no provision in the Code of Criminal Procedure giving right to the parties to file an application for amendment in the pleadings and give power to the lower Courts to allow the same. Had it been an application for substitution of the complainant on death or a technical flaw, the position would be different. What cannot be done directly by the Court, should not be done indirectly. 57 With regard to the aforesaid, I may quote a recent pronouncement of the Supreme Court in the case of S.R. Sukumar v. S. Sunaad Raghuram [(2015) 9 SCC 609]. The observation in paras 17 and 18 is the answer to the question whether it is permissible for the Court to allow any amendment in the complaint: 17. Insofar as merits of the contention regarding allowing of amendment application, it is true that there is no specific provision in the Code to amend either a complaint or a petition filed under the....
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....ch is otherwise not permitted. The said principle has been explained in para 17 observing thus: "17. . . . .This procedure is meant to save the time of Court and to preclude frivolous review petitions being filed and heard in open Court. However, with a view to avoid this procedure of 'no hearing,' we find that sometimes applications are filed for 'clarification,' 'modification' or 'recall' etc. not because any such clarification, modification is indeed necessary but because the applicant in reality wants a review and also wants a hearing, thus avoiding listing of the same in chambers by way of circulation. Such applications, if they are in substance review applications deserve to be rejected straightway inasmuch as the attempt is obviously to by-pass O. XL, Rule 3 relating to circulation of the application in Chambers for consideration without oral hearing. By describing an application as one for 'clarification' or 'modification,' - though it is really one of review - a party cannot be permitted to circumvent or by-pass the circulation procedure and indirectly obtain a hearing in the open Court. What cannot be done directly ....
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....urt shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque ; (b) such complaint is made within one month of the date on which the cause of action arises under Clause (c) of the proviso to Section 138 ;. (c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138," 4. Section 4(2) of the Code requires that all offences under any law, other than the Indian Penal Code, 1860, shall also be enquired into or tried and otherwise dealt with according to the provisions of the Code, subject to any other enactment which requires a different mode of trial for such offence. The non-obstante clause in Section 142 of the Act is intended to make it clear that the three matters specified in the section have overriding effect on the provisions of the Code. The clause does not keep the provisions of the Code away from trial or inquiry into the offence under Section 138 of the Act as for all other purposes. All that Section 142 restricts is that for taking....
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.... miscellaneous cases in limine. 60 In M/s. Plywood House (supra), one of the submissions before the learned Single Judge of the Kerala High Court on behalf of the petitioner was that since there was no provision in the Negotiable Instruments Act for impleading a new accused in the case, the Court could not have recourse to the general provisions contained in the Cr.P.C. Such submission was canvassed by the accused to oppose an application filed by the complainant for impleading the firm as an additional accused. The submission was rejected on the ground that Section 142 of the Negotiable Instruments Act itself makes it clear that the prosecution proceedings contemplated therein are either untrammelled or unaided by anything contained in the Code. The learned Judge took the view that the non-obstante clause in Section 142 of the Act is intended to make it clear that the three matters specified in the section have an overriding effect on the provisions of the Code. There cannot be any debate on the proposition of law explained in the decision. The second contention, which was raised, was as regards the prohibition in Section 142 to taking of cognizance of any offence. The submissi....
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....nd. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all. 62 In Ambica Quarry Works vs. State of Gujarat & Others (1987) 1 SCC 213 (vide para 18), the Supreme Court observed: The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it. 63 In Bhavnagar University vs. Palitana Sugar Mills Pvt. Ltd (2003) 2 SCC 111 (vide para 59), the Supreme Court observed:- It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. 64 The endeavour on the part of the learned counsel appearing for the petitioner in the present case all through out the course of his submissions was that when a person is impleaded or added as an accused by virtue of Section 319 of the ....
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....not otherwise prevail, but in each case it would be a question as to with what object the legislature has made such a deeming provision. In St. Aubyn and Ors. v/s. Attorney General, 1952 A.C. 15 at p.53 Lord Radcliffe observed thus: "The word 'deemed' is used a great deal in modern legislation. Sometimes it is used to impose for the purposes of a statute an artificial construction of a word or phrase that would not otherwise prevail. Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain. Sometimes it is used to give a comprehensive description that includes what is obvious, what is uncertain and what is, in the ordinary sense, impossible." 70 In State of Tamil Nadu v. M/s. Arooran Sugars Ltd., reported in AIR 1997 SC 1815, a Constitution Bench, while dealing with the deeming provision in a statute, opined that the role of a provision in a statute creating legal fiction is well settled. Their Lordships referred to the decisions in East End Dwellings Co. Ltd. v/s. Finsbury Borough Council, 1952 AC 109, Chief Inspector of Mines v/s. Karam Chand Thapar, AIR 1961 SC 838, J.K. Cotton Spinning and Weaving Mills Ltd. v/s. U....
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.... Court took cognizance of the complaint upon which the inquiry or trial was commenced, the same indicates that the Court is not empowered to take cognizance of any fresh offence if any accused is impleaded by invoking Section 319 and the newly added accused could be tried only for the offence already taken cognizance against the other accused. 73 The policy of the Code is that the offence can be taken cognizance of once only and not repeatedly upon discovery of further particulars. In a given case, the complainant may not even know the names and other particulars of the offenders, and it would, therefore, be sufficient for him to lodge a complaint making the persons who are known as the accused. When such a trial proceeds against the known accused, if the evidence led in trial discloses offences committed by other persons who could be tried along with the accused, then there need not be a fresh complaint and fresh order of cognizance against those persons. I reiterate that the complaint was liable to be dismissed on the very first day of its presentation and no process could have been issued against the partners in the absence of the partnership firm. 74 My view is fortified ....
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....erly described. So, in that case, the company was impleaded as a party but the description of the company was found to be a mistake, and, therefore, the apex court observed that this technical flaw of describing the name of the company can be rectified by amending the complaint. Therefore, that decision will not come in support of the respondent's contention because in this case, the respondent has deliberately omitted to implead the company. According to the learned senior counsel, Mr. Vanamamalai, the defect in this case, is a serious legal infirmity in the complaint itself, and, therefore, when the complaint itself has the initial defect, the proceedings cannot be allowed to continue against the petitioner. He also draws support from the decision in Delhi Municipality v. Ram Kishan, , wherein the Supreme Court observes that it is manifestly clear that proceedings against an accused in the initial stage can be quashed only if on the basis of the complaint or the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegations in the complaint, as they are, without adding or subtracting anything, if no offence is made out, then t....
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....rt, would contend that when the court has taken cognizance of the offence against a partner, it will not affect the proceedings for the failure to implied the other accused including the company. In Alex v. Vijayan [1994] 81 Comp Cas 910 (Ker); [1993] MWN 192, the Kerala High Court has held that when the managing partner of a firm was prosecuted under Section 138 of the Negotiable Instruments Act for the dishonour of the cheque issued by the managing partner and without impleading the partnership, the partners alone were prosecuted, the complaint is maintainable against the partners alone. Following this decision, the same court in M.O.H. Iqbal v. Uthaman (M) [1995] 82 Comp Cas 726; [1993] MWN 146, also repeated the same view that the complaint against the partners is maintainable without impleading the company under Section 138 of the Negotiable Instruments Act. In Plywood House v. Woodcraft Products Ltd. [1993] MWN 140; [1997] 88 Comp Cas 565 the Kerala High Court has again held that when the managing partner was prosecuted for the offence under Section 138 of the Negotiable Instruments Act without impleading the partnership, the partnership can be impleaded subsequently also as ....