TMI Blog2023 (8) TMI 598X X X X Extracts X X X X X X X X Extracts X X X X ..... proprietor of M/s. Maa Manasha Enterprise had made payment to Delicious Agro Food Pvt. Ltd. for food product, but the said company had not delivered any such food item and accused being director of the said company had returned the money by issuing a cheque in favour of the complainant . The accused/petitioner had on application before the trial court also stated that the complainant had entered into the transaction with the company, Delicious Agro Food Pvt. Ltd. . The petitioner as director of the company was the person who issued the cheque in this case and the transaction was carried out by the petitioner as director on behalf of the company. As such there is clear averments in the complaint itself, against the company and also its director. The trial court shall permit the complainant to amend the petition of complaint and then proceed with the case in accordance with law - Appeal allowed. - The Hon ble Justice Shampa Dutt (Paul) For the Opposite Parties : Mr. Mani Sankar Chattopadhyay For the State : Ms. Faria Hossain, Ms. Mausumi Sarkar ORDER Shampa Dutt (Paul), J. 1. The present appeal has been preferred against the judgment and order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Negotiable Instruments Act, 1881 against the private respondents on 19.04.2017 being C.R. Case No. 116 of 2017. 6. On 17.02.2018, the private respondents moved a petition before the Learned Additional Chief Judicial Magistrate, Contai, Purba Medinipur praying for dismissal of the instant case on the ground of maintainability. The Learned Additional Chief Judicial Magistrate, Contai, Purba Medinipur, by his order dated 27.04.2018, after hearing the concerned parties in connection with the petition dated 17.02.2018, directed the instant case to be dropped thereby acquitting the private respondents on the ground of maintainability of the instant case in terms of Section 141 of the Negotiable Instruments Act. 7. Being aggrieved by and dissatisfied with the order dated 27.04.2018 passed by the Learned Additional Chief Judicial Magistrate, Contai, Purba Medinipur, in C.R. Case No. 116 of 2017, the appellant preferred Special Leave to Appeal before this Hon ble Court being C.R.M.S.P.L. No. 60 of 2018 and His Lordship the Hon ble Justice Shivakant Prasad on 20.08.2018 was pleased to grant leave to the appellant to prefer the present appeal. 8. Mr. Srinjay Sengupta, learned c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brought to justice. 14. The impugned order is otherwise bad in law and the same is liable to be set aside. 15. Mr. Mani Sankar Chattopadhyay, learned counsel for the opposite parties submits that the complaint is not tenable against the accused as the complainant has not implicated the said company in the case. Moreover there is no averment in the said complaint about the role of the directors whom the complainant has named as accused. Without such averment accused cannot be made responsible for the misdeeds of the company. The complaint is rightly dismissed acquitting the accused. He has cited a decision in support of his contention which is reported in 2017(4) AICLR 1 (SC) (N. Harihara Krishnan v. J. Thomas, dated 30.08.2017) 16. From the materials on record, it is seen that:- The final part of the judgment under appeal is as follows:- Ordered Compl. Case No. 116 of 2017 Dated:- 27.04.2018 .that the said application is allowed on contest without any costs and the complaint is dropped being not maintainable as per provision of Section 141 of the Negotiable Instrument Act and the accused are acquitted and they are released from their re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court has held as follows:- The learned Single Judge has focussed his attention only on the [pic]technical flaw in the complaint and has failed to comprehend that the flaw had occurred due to the recalcitrant attitude of Modi Distillery and furthermore the infirmity is one which could be easily removed by having the matter remitted to the Chief Judicial Magistrate with a direction to call upon the appellant to make the formal amendments to the averments contained in para 2 of the complaint so as to make the controlling company of the industrial unit figure as the concerned accused in the complaint. All that has to be done is the making of a formal application for amendment by the appellant for leave to amend by substituting the name of Modi Industries Limited, the company owning the industrial unit, in place of Modi Distillery . Furthermore, the legal infirmity is of such a nature which could be easily cured... 18. What is discernible from the U.P. Pollution Control Board s case is that easily curable legal infirmity could be cured by means of a formal application for amendment. If the amendment sought to be made relates to a simple infirmity which is curable by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmitted the complainant to amend the complaint by adding the name of Company as one of the accused(s) (Manish Kalani Another v. Housing and Urban Development Corporation Ltd. Anr., M.Cr.C.No. 16282/2016, Madhya Pradesh High Court, dated 30.01.2018). 27. In Manish Kalani Another v. Housing and Urban Development Corporation Ltd. Anr. (Supra), the Court further held:- 31. So, in the peculiar facts and circumstances of the case the application filled by the applicants for taking cognizance against applicant No.2 company comes under the purview of Section 190 (1)(a) of the Cr.P.C. and not under Section 319 of Cr.P.C. Because the name of the applicant No.2/company as an accused and the basis of its accusation were already mentioned in the complaint at the time of its filling. It is the fault of the trial Court which only took cognizance against the Director and did not take cognizance against the company, which can be cured by the trial Court at any time. There is no bar under Section 190 of the Cr.P.C. that once the process is issued against some accused, on the next date, the Magistrate cannot issue process to some other person against whom there is some material on rec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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