TaxTMI 
TaxTMI 
2024 (5) TMI 1321
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....ntioned complaint case. 2. The petitioner was working for gain as the Managing Director of Amrit Feeds Limited which is Company registered within the meaning of the Companies Act, 2013. 3. A complaint was preferred by the Opposite Party herein with the Court of Learned Chief Judicial Magistrate, Malda therein alleging offences committed by the Petitioner punishable under Section 138 of the Negotiable Instruments Act, being Complaint Case No. 54C of 2017. 4. It is submitted by the petitioner that the cheque was issued in the name of the Company, named and styled as Amrit Feeds Limited, but the said Company has till date not been impleaded as an Accused. 5. It has been categorically alleged by the said Opposite Party that the said cheque ....
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....servant acting or- purporting to act in the discharge of his official duties or a court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192 : Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re- examine them." 10. Section 202 of Cr.P.C., lays down:- "202. Postponement of issue of process. (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, [and shall, in a case where the accused is residing at a p....
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.... April 16, 2021 has held in respect of compliance of the provision under Section 202 Cr.P.C. in such cases as follows:- "12. Another point that has been brought to our notice relates to the interpretation of Section 202 (2) which stipulates that the Magistrate shall take evidence of the witness on oath in an inquiry conducted under Section 202 (1) for the purpose of issuance of process. Section 145 of the Act provides that the evidence of the complainant may be given by him on affidavit, which shall be read in evidence in any inquiry, trial or other proceeding, notwithstanding anything contained in the Code. Section 145 (2) of the Act enables the court to summon and examine any person giving evidence on affidavit as to the facts contained....
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....t compulsory that he should examine witnesses. In suitable cases, the Magistrate can examine documents for satisfaction as to the sufficiency of grounds for proceeding under Section 202." 13. Thus Section 202(2) Cr.P.C. is not applicable in the present proceedings which is under Section 138 N.I. Act. 14. It is also seen that in paragraph 2 of the petition of complaint that the Complainant/Opposite party has stated that he has filed the present complaint against the accused person as proprietor. 15. The cause title in the petition of complaint is as follows:- Harish Bagla, Managing Director of Amrit Feeds Limited. 16. In Paragraph 3 it is stated:- "That the accused person approached the complainant to supply Soya sales for his company....
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....nt against the appellant was therefore not maintainable. The appellant had signed the cheque as a Director of the company and for and on its behalf. Moreover, in the absence of a notice of demand being served on the company and without compliance with the proviso to Section 138, the High Court was in error in holding that the company could now be arraigned as an accused." 20. The facts in the present case is very similar to the case, in Himanshu vs. B. Shivamurthy & Anr. (Supra). 21. In the present case:- a) The company has not been made an accused nor was any notice served upon the company, though the cheque was issued on behalf of the company. b) The petitioner has been made an accused as the person, who signed and issued the cheque....