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2022 (5) TMI 900 - HC - Indian LawsDishonor of Cheque - Insufficient Funds - It is submitted that the respondent was not able to establish the status and role in the accused Company or in what capacity he issued the cheques in question - who was the drawer of the cheque in question? - HELD THAT:- Although the cheque was the signed by the respondent, the cheque issued to the petitioner bore the name of the accused Company as the account holder, being a separate entity from its members, and not of the respondent. Moreover, as a requirement under Section 138 of the NI Act, the holder of the cheque that is dishonoured has to make a demand for the payment of the contested amount of money by giving a notice, in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. It is an admitted fact that the cheque presented by the petitioner was returned dishonoured and the petitioner, as per the mandate of Section 138 of the NI Act, issued a notice intimating the dishonour of cheque solely to the respondent. It was only at the stage of complaint proceedings that the petitioner impleaded the accused company as a party. In the present case, the accused Company was made a party to the complaint case without being furnished a notice, thereby, without it an opportunity to defend itself. In such a situation, had the Company been held guilty of the offence under Section 138 of the NI Act, it would have been without giving it a fair an equitable opportunity of defending itself, since, the fact remains that it was never intimated about the dishonour of the cheque, as per requirement of the Act. The perusal of the cheque also reveals that although it was signed by the respondent, it bears the name of the accused Company and not the respondent, hence, being a separate entity, the prime liability also pertained to the Company as the drawer of the cheque. At the outset, the complaint against the Company, hence, was not maintainable. Since, the drawer of the cheque was the accused Company, solely on the ground that the respondent had signed the cheque, a liability under Section 138 of the NI Act did not arise against him. The complaint was prima facie not maintainable against the Company as drawer of the cheque, the liability towards the respondent also did not arise keeping in view that respondent was acting on behalf of the Company and where the liability against the Company had been discharged, a private and severed liability against the respondent could not have arisen in the circumstances of the instant matter - this Court does not find any error, illegality or impropriety in the impugned order dated 13th September, 2017 passed by learned Additional Sessions Judge, Tis Hazari Courts, New Delhi. Petition dismissed.
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