TaxTMI 
TaxTMI 
TaxTMI 
2018 (1) TMI 1644
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.... Company i.e. M/s Jabalpur Treasure Island Pvt. Ltd. formerly known as M/s Entertainment World Jabalpur Pvt. Ltd. as accused. 2. Brief facts of the case which are relevant for just disposal of the petition is that the non-applicant No.1/complainant Housing and Urban Development Corporation Limited (HUDCO) had sanctioned loan and disbursed a sum of Rs. 66 crore to the applicant No.2 M/s Jabalpur Treasure Island Pvt. Ltd. The applicant No.1 Manish Kalani was the Managing Director of the aforesaid company. In order to repay the said loan, applicant No.1 issued a cheque No.464768 dated 01/11/2011 amounting to Rs. 1 crore drawn on Dena Bank Ltd., Branch Navlakha, Indore in favour of the nonapplicant No.1. The said cheque was presented by non-applicant No.1 for encashment, but the same was dishonoured due to insufficiency of fund. The non-applicant No.1, therefore, served notice on the applicant No.1 through his counsel calling upon him to pay the cheque amount. Since, the nonapplicant No.1 failed to pay the cheque amount within the prescribed period, the non-applicant filed a written complaint before the learned JMFC, Bhopal under Section 138 of the Act. On that complaint, learned Magi....
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....of the company on behalf of Company, the complaint under Section 138 of the Act against the Director is not maintainable for fastening vicarious liability without impleading company as party in the complaint. While initially, complainant/ non applicant No.1 filed the complaint without impleading company as an accused, so the complaint is not maintainable. In this regard he placed reliance on the judgment of Hon'ble Apex Court passed in the case of Aneeta Hada Vs. Godfather Travels & Tours Pvt. Ltd., (2012) 5 SCC 661. He further submitted that in case of dishonor of cheque mere dishonour of a cheque would not give rise to cause of action unless the payee makes a demand in writing to the drawer of the cheque for the payment and the drawer fails to make the payment of the said amount of money to the payee within stipulated period after receiving the notice. While in this case non applicant did not send any notice to applicant no.2, therefore, cognizance cannot be lawfully taken against the company only on the basis of the application filled by the non-applicant no.1 before trial court. Learned counsel further submitted that initially, non applicant No.1 filed the complaint without imp....
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....s put forth by the learned counsel for the parties. 9. As for as maintainability of revision under Section 397 of the Cr.P.C. against the order dated 04/12/2015 passed by the learned JMFC in Cri.Case No.4826/2012 is concerned, learned trial Court rejected the nonapplicant's application observing that the provisions of Section 142 (b) of the Act have not been complied with and, therefore, cognizance cannot be lawfully taken against the company. The order of learned trial Court refusing to take cognizance against the applicant no.2 company comes under Section 203 of the Cr.P.C. and the same is revisable. 10. The facts of the cases relied by the learned counsel of the applicants i.e. Bhaskar Industries Ltd. Vs. Bhiwani Denim & Apparels Ltd., Subramanium Sethuraman Vs. State of Maharashtra & Anr and Adalat Prasad Vs Rooplal Jindal (Supra) do not match with the present case, so these judgements do not help applicants much. In the instant case non-applicant no.1/complainant neither filed the application before trial for reviewing its earlier order, nor against the cognizance earlier taken by the trial Court vide order dated 27/06/2012 against the applicant no.1, but filled the applicat....
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.... the complaint as an accused or not. It is admitted that initially when non-applicant No.1 had filed that complaint before the trial Court the name of Company was not mentioned in the cause title of the complaint. 14. Learned counsel for non-applicant No.1 submitted that in the body of the complaint it is clearly mentioned that the offence was committed by the non-applicant No.1 as well as by the company/applicant no.2, so it cannot be said that initially when the applicant had filed the complaint, the name of the company was not mentioned in the complaint as an accused. On the other hand, learned counsel for the applicant submitted that initially when the complaint was filed by the non-applicant No.1 the name of the company as an accused was not mentioned in the cause title of the complaint, so it cannot be said that initially the complaint was also filed against the Company. 15. The definition of 'complaint' and the model format of the complaint is not mentioned in the Negotiable Instrument Act. In these circumstances, the definition of the complaint will be seen from Section 2 (d) of the Cr.P.C., which reads thus :- "Complaint" means any allegation made orally or in writing t....
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....office. She being the principal law officer of the said office is authorised to sign, verify the present complaint as also to do all other acts necessary for the proper prosecution or defence of legal proceeding. 3. That, the complaint on the request of the accused on his application sanctioned & disbursed Loan to the tune of Rs. 66 Crores under the scheme for Construction of Shopping-cum- Multiplex Mall Treasure Island at Jabalpur (scheme No.19373) hence the accused are the borrower of the complaint. 4. That, the accused agreed to repay the loan together with agreed rate of interest to the complainant as per the term of the agreement executed by the accused in favour of the complainant as also have signed and issued the cheque in favour of the complainant on behalf of the accused in discharge of the legal liability towards the repayment of the loan amount. 5. That, the accused being Director of M/s Jabalpur Treasure Island and incharge of and responsibility for the conduct of business of the said company is being headed by accuse in the capacity of Directors and the cheques in question have been issued by accused in the capacity of the Directors of the accused company hence the....
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.... from the beginning the non-applicant No.1 had filed complaint before Judicial Magistrate not only against the applicant No.1, but also against the Company i.e. M/s Jabalpur Treasure Island Pvt. Ltd. 21. So, only on the ground that when complaint was filed the name of the company was not mentioned in the cause title of the complaint, it cannot be said that initially when the complaint was filed by the nonapplicant No.1 before the trial Court, he did not make the company as accused in the complaint. The only default of the non-applicant No.1 is that he has not mentioned the name of the Company as an accused in the cause title of the complaint, so the non-applicant No.1 filed application for impleading the name of company as an accused in the cause title by way of amendment. 22. The complainant is entitled to amend his complaint filed under Section 138 of the Act as held by this Court in the case of Pandit Gorelal (supra) and also by Hon'ble Apex Court in the case of S.R.Sukumar Vs. S.Sunaad Raghuram, (2015) 9 SCC 609, wherein Hon'ble Apex Court held that "what is discernible from U.P. Pollution Control Board case [(1987) 3 SCC 684 : 1987 SCC (Cri) 632] is that an easily curable le....
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....wal (supra) also held that the demand notice issued in the name of Director, who has signed the cheque is notice to the drawer Company, therefore the prosecution of non-applicant No.2 Company for the offence under Section 138 of the Act would not be invalid for the reason that the notice was not served upon the Company. 26. The judgment of Hon'ble Apex Court passed in the case of N. Harihara Krishnan Vs. J. Thomas (supra) relied by the learned counsel for the applicants also does not help much to the applicant. In this case Hon'ble Apex Court in pera 32 and 33 of judgement observed as thus :- 32. The scheme of the prosecution in punishing under Section 138 of THE ACT is different from the scheme of the CrPC. Section 138 creates an offence and prescribes punishment. No procedure for the investigation of the offence is contemplated. The prosecution is initiated on the basis of a written complaint made by the payee of a cheque. Obviously such complaints must contain the factual allegations constituting each of the ingredients of the offence under Section 138. Those ingredients are: (1) that a person drew a cheque on an account maintained by him with the banker; (2) that such a cheque....
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....me of the person drawing the cheque is one of the factual allegations which a complaint is required to contain. Otherwise in the absence of any authority of law to investigate the offence under Section 138, there would be no person against whom a Court can proceed. There cannot be a prosecution without an accused. The offence under Section 138 is person specific. Therefore, the Parliament declared under Section 142 that the provisions dealing with taking cognizance contained in the CrPC should give way to the procedure prescribed under Section 142. Hence the opening of non-obstante clause under Section 142. It must also be remembered that Section 142 does not either contemplate a report to the police or authorise the Court taking cognizance to direct the police to investigate into the complaint". 27. While in the instant case in the complaint above-mentioned all the five ingredients are pleaded regarding applicant No.2 company and name of the applicant No.2 company is also mentioned as discussed above. 28. In that case Hon'ble Apex Court rejected the complainant's application on the ground of delay observing that "No doubt Section 142 authorises the Court to condone the delay in ....