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2017 (10) TMI 1234 - HC - Indian LawsOffence punishable under Section 138 of NI Act - court taking cognizance of the offence - Held that:- In the present case, the complainant did not arraign the company as an accused when there was no legal impediment in impleading the company as accused. The drawer of the cheque was company which was evident from the cheque. The complainant had knowledge that the accused was impleaded by filing complaint, he was incharge and responsible for conduct of the business of the said company. Therefore, the complainant ought to have impleaded the company as an accused. Therefore, the present case cannot be equated with the case where during trial it is disclosed that some other accused is required to be impleaded as an accused, or that the evidence on record which may be in the form of examination-in-chief disclosed the involvement of the accused, who is not arraigned as accused in the complaint. From the face of cheque, statement in the complaint, evidence of the complainant, it was manifestly clear that the drawer of the cheque was company. The respondent no.2 filed the application u/s 319 only when she knew that as per Aneeta Hada’s decision (2012 (5) TMI 83 - SUPREME COURT OF INDIA ), the complaint would become void and untenable in law. The Trial Court failed to appreciate that powers could have been exercised where it is difficult to ascertain as to who exactly committed the offence. In a technical offence like Section 138 of N.I.act, the offender is known to the complainant but is not arraigned as an accused, then in such eventuality, the company cannot be arraigned as an accused at a later stage to circumvent the decision of Supreme Court. It is pertinent to note that offence u/s 138 of N.I.Act is qua the drawer of the cheque. The cognizance can be taken within the time limit prescribed under the Act. The order passed by the Trial Court is against the settled principles of law. The cases relied upon by learned advocate for respondent no.2 were delivered in distinct facts and are not applicable in the present case, also contrary to the recent decision in case of N.Harihara Krishnan Vs. J.Thomas (2017 (9) TMI 1 - SUPREME COURT OF INDIA ). In the said decision it has been observed that failing to comply with the steps contemplated u/s 138 of N.I.Act, would not provide cause of action for prosecution and, therefore, in the context of prosecution u/s 138, the concept of taking cognizance of the offence but not an offender, is not appropriate. Unless a complaint of necessary factual allegations constituting each of the ingredients of the offence u/s 138 of N.I. Act is made out, the Court cannot take cognizance of the offence. There is no substance in the contentions of respondent no.2 respectively in these applications and the same are devoid of merit. The prosecution in all these applications which are subject matter of challenge under these applications as well as the orders passed by the learned Magistrate u/s 319 of Cr.P.C deserves to be quashed and set aside.
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