Home Case Index All Cases Indian Laws Indian Laws + HC Indian Laws - 2018 (1) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2018 (1) TMI 1644 - HC - Indian LawsDishonor of CHeque - insufficiency of funds - fastening of vicarious liability without impleading company as party in the complaint - HELD THAT:- From the perusal of Section 2(d) of the Cr.P.C. it is evident that in a complaint if any allegation against any person is mentioned, with a view to take action against him, he will be deemed as an accused of the complaint. From the definition of ‘complaint’ it does not appear that only when the name of person is mentioned in the cause title of the complaint, then only that person shall be treated as accused of that complaint. Although there is no provision in the Act and Code of Criminal Procedure to permit the applicant to amend the complaint, but there is no bar in the Code of Criminal Procedure as well as in the Negotiable Instrument Act against permitting the complainant to amend his complaint. Where, there is no bar in the Act and in the Code of Criminal Procedure, this Court in the interest of justice may permit the complainant to amend the complaint. It is obvious from the scheme of Section 138 that each one of the ingredients flows from a document which evidences the existence of such an ingredient. The only other ingredient which is required to be proved to establish the commission of an offence under Section 138 is that in spite of the demand notice referred to above, the drawer of the cheque failed to make the payment within a period of 15 days from the date of the receipt of the demand. A fact which the complainant can only assert but not prove, the burden would essentially be on the drawer of the cheque to prove that he had in fact made the payment pursuant to the demand. While in the instant case there is no delay on the part of complainant/non-applicant No.1. Because, complainant had already mentioned the name of applicant no.2/company in the complaint from the beginning and prayed to the Court that cognizance be taken against the applicant no.1 as well as against the applicant no.2/company, which clearly appears from the prayer clause of the complaint - Section 319 of the Cr.P.C. would operate in a situation where during the trial and enquiry, it appears to the trial Court whether as a Magistrate or a Sessions Judge that some other persons are also involved in the commission of the offence, for which he is holding the trial, he could invoke Section 319 of the Cr.P.C. for summoning them to be arrayed as an accused. 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 record - Petition dismissed.
|