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2018 (7) TMI 2201 - HC - Indian LawsDishonor of cheque - insufficiency of funds - legality of summon - Whether in the absence of the company as a party to the complaint, the authorized signatory of the company can be summoned under section 138 N.I. Act or not? - HELD THAT:- The complaint filed under section 138 N.I. Act, in respect of an offence committed by a company i.e. where the cheque is issued on behalf of the company would not be maintainable if the company on whose behalf the cheque has been issued is not impleaded as an accused/opposite party in the complaint. Admittedly, in the complaint filed by opposite party no. 2 before the court below the company namely M/s. Usher Agro Limited was not impleaded as a party to the complaint. Whether the failure on the part of the complainant to implead the company as an accused/opposite party in the complaint is fatal and incurable? - HELD THAT:- In the present case, the Court finds that the complaint was filed on 30.5.2016. The summoning order was passed on 28.6.2016, the application for impleadment and to summon the additional accused was filed on 23.9.2016, which was allowed on 10.4.2017. Therefore, upto this stage, the Magistrate has not applied his mind to the contents of the complaint. Therefore, the order dated 10.4.2017 passed by the Magistrate cannot be said to be illegal - there is no iota of doubt that in a case under section 138 of the N.I. Act, if the company on whose behalf the disputed cheque was issued was not impleaded, can be subsequently impleaded. However, the only rider to the aforesaid proposition is that the material particulars in respect of the same should be present in the complaint filed under section 138 of the N.I. Act or else the same being barred by limitation cannot be permitted at a belated stage. In the present case, the complaint was filed on 20.4.2016 and the application to summon the company as an additional accused was filed on 23.9.2016. The omission to implead the company as an accused/opposite party was not such an infirmity which could not have been allowed to be cured as all material particulars necessary for implicating the company as an accused were already pleaded in the complaint dated 20.4.2016. Therefore, there is no illegality was committed by the Court below in passing the order dated 10.4.2017 on the application dated 23.9.2016, filed by the complainant for summoning the company as an accused. Whether the company namely M/s. Usher Agro Ltd. Could have been summoned under section 319 Cr.P.C. even when no evidence had been recorded by the court concerned? - HELD THAT:- In addition to the aforesaid, an ancillary question shall also arise as to whether the Court below could have summoned the applicant M/s. Usher Agro Ltd, even when the scope of section 319 Cr.P.C. is limited only to post cognizance stage when complicity of person other than those named as an offender comes to light from the evidence recorded in the course of enquiry or trial - there is no provision in the N.I. Act or the Code of Criminal Procedure which prohibits the impleadment of a party to the complaint as an additional accused/opposite party. Similarly, there is no provision either under the N.I. Act or the Code of Criminal Procedure providing for impleadment of a person as an accused/opposite party in a complaint. The application filled by the applicants for taking cognizance against applicant No. 2 company comes under the purview of Section 190(1) (a) 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 summoned the Director alone and left the company. Such defect is not an incurable defect and can be cured by the trial Court at any time. There is no bar under Section 190 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.
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