2023 (1) TMI 292 - HC - Indian Laws
Dishonor of Cheque - insufficiency of funds - legally enforceable debt - petitioners submits that the petitioner No.1 has issued signed blank cheque as security, but, the respondent has presented the same without the knowledge of the petitioners - it is submitted that admittedly the Company has not been arrayed as party in the N.I. Act case. But, the Directors of the company have been made parties in the said case.
HELD THAT:- Since Durga Krishna Store Pvt. Ltd, the company has not been made an accused here in this case, and since no legal notice has also been issued to it, the complaint under Section 138 of the N.I. Act, to the considered opinion of this court, cannot be maintained against the present petitioners, without invoking the provision of Section 141 of the N.I. Act and as such the complaint lodged before the Court of learned CJM, Cachar, Silchar is nothing but an abuse of the process of Court and the impugned order of taking cognizance, dated 16.03.2020, suffers from manifest illegality and thus, failed to withstand the test of legality, propriety and correctness - Further, it appears that in the complainant petition, the respondent has not specifically stated as to how the petitioners are responsible for the conduct of the business of the company i.e. Durga Krishna Store Pvt. Ltd. Merely because the petitioner No.1 is the signatory of the cheque in question, is not at all sufficient to arraign him as an accused. Moreover, the respondent has never made any averment in the complaint against the petitioner No.2 as to how he is responsible for the conduct of the business of the company, though he appears to be the director of the company.
There are sufficient merit in this petition, and accordingly, the same stands allowed.