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2016 (1) TMI 1506 - MADHYA PRADESH HIGH COURTDishonour of Cheque - non-service of notice - name of the applicant was added as an accused in the complaint filed for the offence under Section 138 of Negotiable Instruments Act - cognizance in the case under the provisions of Section 319 of Cr.P.C. - HELD THAT:- Looking to the facts and circumstances of the case, an accused can be added in a case when the trial Court has taken cognizance in the case under the provisions of Section 319 of Cr.P.C. However, it is a case of 138 of Negotiable Instruments Act and the complaint can be filed against an accused if a valid demand notice has been given to that accused and payment was not made by him. In the present case, M/s Excel Telecom may be a proprietary firm or a partnership firm, no notice has been given to the applicant either in his personal capacity or being proprietor of the aforesaid firm and when no demand notice was given within the time fixed under Section 138 of Negotiable Instruments Act then no complaint can be prosecuted against the applicant. In the light of the provision of Section 138 of Negotiable Instruments Act when the complaint could not be prosecuted against the applicant then he could not be added as an accused in the complaint by moving a simple amendment application. The trial Court has no power to pass such order as the inherent powers are vested in High Court under Section 482 of Cr.P.C. The impugned order passed by the trial Court appears to be perverse and when the complaint was not maintainable against the applicant for the offence under Section 138 of Negotiable Instruments Act, he could not be made an accused in the case. It is a good case in which the inherent power of this Court conferred under Section 482 of Cr.P.C. can be invoked in favour of petitioner. The petition under Section 482 of Cr.P.C. filed by the applicant Sandeep Sabu is hereby disposed off with the direction that the order dated 21-02- 2013 shall have no effect in the matter and the respondent cannot prosecute the applicant for the complaint filed under Section 138 of Negotiable Instruments Act without issuance of notice of demand within the limitation as prescribed under Section 138 of Negotiable Instruments Act.
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