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SWARN MUKESHBHAI GUPTA Versus PARTH MUKESHBHAI PATEL AND 1

2017 (4) TMI 827 - GUJARAT HIGH COURT

Liability under section 141 of the N.I. Act - criminal cases against partnership firm - Held that:- As decied in OANALI ISMAILJI SADIKOT Versus STATE OF GUJARAT AND 1[2016 (3) TMI 290 - GUJARAT HIGH COURT ] when Subsection (4)(b) of Section 319 of the Code says that it will be presumed that the newly added person had been an accused person when the Court took cognizance of the complaint upon which the inquiry or trial was commenced, the same indicates that the Court is not empowered to take cogn .....

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complaint making the persons who are known as the accused. When such a trial proceeds against the known accused, if the evidence led in trial discloses offences committed by other persons who could be tried along with the accused, then there need not be a fresh complaint and fresh order of cognizance against those persons. Also reiterate that the complaint was liable to be dismissed on the very first day of its presentation and no process could have been issued against the partners in the absenc .....

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arties are also the same, those were heard analogously and are being disposed of by this common judgment and order. 2. By these two applications under section 482 of the Code of Criminal Procedure, 1973, the applicant seeks to invoke the inherent powers of this Court praying for quashing of the proceedings to the two criminal cases being the Criminal Case No.7674 of 2015 and Criminal Case No.7675 of 2015 respectively pending in the court of the learned Chief Judicial Magistrate, Ahmedabad arisin .....

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the complaints should fail in the absence of the company not being arraigned as an accused in the complaint. This issue is squarely covered by the decision of the Supreme Court in the case of Aneeta Hada vs. Godfather Travels & Tours Pvt. Ltd., (2012) 5 SCC 661. 4. At this stage, Mr. Hardik Shah, the learned counsel appearing for the complainant submitted that it was just a typographical error on the part of the complainant in not arraigning the company as an accused. Mr. Shah submits that, .....

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proceed to answer the third question, I deem fit to quote Sections 138 and 142 of the Act: 138. Dishonour of cheque for insufficiency, etc., of funds in the account Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that ac .....

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a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, b [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the dr .....

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y offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138 : [Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within .....

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, which deals with cognizance of offences punishable under Section 138, lays down a necessary precondition i.e. a written complaint by the payee or the holder of the cheque in due course and prescribes a special period of limitation within which the complaints must be filed (clause (b)). Clause (b) of Section 142 read with Clause (a) of the section suggests that a Court shall not take cognizance of an offence punishable under Section 138 of the Act unless the complaint in that behalf is made wit .....

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izance of the case under the Act and to take cognizance of an offence punishable under Section 138 despite expiry of such period of limitation, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period. 39 Limitation under the Section is, however, provided only for filing the complaint and not for taking cognizance or even for issuing the process. The thrust is only on making the complaint meaning thereby presenting it to the Magistrate. Th .....

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in the absence of the legal entity being the principal accused and thought fit to issue process against the Directors by virtue of their vicarious liabilities under Section 141 of the Act. 41 The following are the questions I need to look into: (I) Whether the complaint under Section 138 of the Act the day it was filed was maintainable in law against the partners alone in the absence of the partnership firm being a legal entity not being impleaded as an accused? (II) Whether the Magistrate could .....

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it not be said that indirectly he is substantially amending the complaint thereby changing the entire complexion of the same which is otherwise not permissible in law. (V) Could it be said that although the cognizance was taken in the year 2004, yet the impleading of the partnership firm, after twelve years, would be in consonance with Section 142(b) of the Act read with Clause (a)? To put it in other words, could it be said that the complaint against the partnership firm is made within one mon .....

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other persons appearing to be guilty of offence (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. (2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, fo .....

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been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. 44 The objects and reasons of Section 319 of the Cr.P.C. are as under: The Law Commission in its 41st Report observed :- "24.80. It happens sometimes, though not very often, that a Magistrate hearing a case against certain accused finds from the evidence that some person, other than the accused before him, is also concerned in that very offence or in a connected offence. It is .....

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agistrate proceeding under it has the power of taking cognizance of the new case. It does not, however, say in what manner cognizance is taken by the Magistrate. The modes of taking cognizance are mentioned in section 190, and are apparently exhaustive. The question is, whether against the newly added accused, cognizance will be supposed to have been taken on the Magistrate's own information under S. 190(1)(c), or only in the manner in which cognizance was first taken of the offence against .....

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same manner as against the other accused. We, therefore, propose to re-cast S. 351 making it comprehensive and providing that there will be no difference in the mode of taking cognizance if a new person is added as an accused during the proceedings. It is, of course, necessary (as is already provided) that in such a situation the evidence must be reheard in the presence of the newly added accused." 45 The crucial words in the section are, any person not being the accused.' This section .....

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ar to have committed and issue process for the purpose. It provides that the cognizance against newly added accused is deemed to have been taken in the same manner in which cognizance was first taken of the offence against the earlier accused.It naturally deals with a matter arising from the course of the proceeding already initiated. The scope of the section is wide enough to include cases instituted on private complaint. 46 It is therefore abundantly clear that the object of the makers of the .....

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to have committed. The intention of the Legislature in enacting Section 319 appears to be that if somebody other than the person who is party and facing trial or enquiry is also an accused, he may be summoned on the basis of some evidence available on the record. 47 Thus, having regard to the substantive provision of Section 319 of the Cr.P.C. read in conjunction with the objectives and reasons, Section 319 of the Cr.P.C. authorizes the Court concerned to take cognizance against any person who .....

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the original accused, then only, cognizance can be taken under the provisions of Section 319. 48 Let me give a simple illustration. Take a case where the partnership firm being a legal entity is an accused. The trial Court has taken cognizance and issued process against the partnership firm as a legal entity. In the course of the trial, it comes to the notice of the Court that one of the partners not being accused has committed an offence for which he could be tried together with other partners .....

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he Cr.P.C. would not save the situation and is actually not meant to take care of such a serious infirmity in the complaint. 50 The best test in the construction of statutes is to see the subject-matter of the purpose for which a provision of law is enacted. One should always get at its real object and purpose; the importance of the provision of law enacted and its relation to or effect on the general object intended to be secured by its enactment. The surroundings, the purpose of enactment, the .....

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oposition that if initial action is not in consonance with law, all subsequent and consequential proceedings would fall through for the reason that illegality strikes at the root of the order. In such a fact-situation, the legal maxim "sublato fundamento cadit opus" meaning thereby that foundation being removed, structure/work falls, comes into play and applies on all scores in the present case. 53 In Badrinath v. State of Tamil Nadu and Ors. [AIR 2000 SC 3243]; and State of Kerala v. .....

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initial stage is bad in law, then all further proceedings, consequent thereto, will be non est and have to be necessarily set aside. 55 In C. Albert Morris v. K. Chandrasekaran and Ors., [(2006) 1 SCC 228], the Supreme Court held that a right in law exists only and only when it has a lawful origin. 56 I am of the view that the application under Section 319 of the Cr.P.C. seeking impleadment of the partnership firm as an accused is more in the nature of a substantive amendment. There is no provi .....

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naad Raghuram [(2015) 9 SCC 609]. The observation in paras 17 and 18 is the answer to the question whether it is permissible for the Court to allow any amendment in the complaint: 17. Insofar as merits of the contention regarding allowing of amendment application, it is true that there is no specific provision in the Code to amend either a complaint or a petition filed under the provisions of the Code, but the Courts have held that the petitions seeking such amendment to correct curable infirmit .....

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aint and has failed to comprehend that the flaw had occurred due to the recalcitrant attitude of Modi Distillery and furthermore the infirmity is one which could be easily removed by having the matter remitted to the Chief Judicial Magistrate with a direction to call upon the appellant to make the formal amendments to the averments contained in para 2 of the complaint so as to make the controlling company of the industrial unit figure as the concerned accused in the complaint. All that has to be .....

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o be made relates to a simple infirmity which is curable by means of a formal amendment and by allowing such amendment, no prejudice could be caused to the other side, notwithstanding the fact that there is no enabling provision in the Code for entertaining such amendment, the Court may permit such an amendment to be made. On the contrary, if the amendment sought to be made in the complaint does not relate either to a curable infirmity or the same cannot be corrected by a formal amendment or if .....

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pen Court. However, with a view to avoid this procedure of 'no hearing,' we find that sometimes applications are filed for 'clarification,' 'modification' or 'recall' etc. not because any such clarification, modification is indeed necessary but because the applicant in reality wants a review and also wants a hearing, thus avoiding listing of the same in chambers by way of circulation. Such applications, if they are in substance review applications deserve to be re .....

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ectly." 59 The learned counsel appearing for the petitioner placed strong reliance on one decision of the Kerala High Court delivered by Justice K.T. Thomas (as His Lordship then was), in which, His Lordship took the view that by virtue of Section 319 of the Cr.P.C., the partnership firm can be subsequently impleaded in the complaint. Let me look into the judgment closely. It is a short judgment of eight paras. I deem fit to quote the entire judgment: 1. The petitioner is a firm. On the str .....

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s the firm which drew the cheques was not made an accused in the complaints. On November 6, 1992, the complainant filed a petition in each case praying for impleading the firm as additional accused. Though the petitions were stoutly resisted, the Chief Judicial Magistrate before whom the complaints were filed, allowed the petitions by the impugned order. 2. Two main contentions have been advanced by learned counsel for quashing the order. The first is that since there is no provision in the Act .....

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ry of the period of one month from the date of cause of action envisaged in Clause (c) of Section 138 of the Act, and hence the firm cannot be impleaded after the said period. 3. Section 142 of the Act reads as follows : "Cognizance of offences.-Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (a) no court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, th .....

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se dealt with according to the provisions of the Code, subject to any other enactment which requires a different mode of trial for such offence. The non-obstante clause in Section 142 of the Act is intended to make it clear that the three matters specified in the section have overriding effect on the provisions of the Code. The clause does not keep the provisions of the Code away from trial or inquiry into the offence under Section 138 of the Act as for all other purposes. All that Section 142 r .....

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be based on the erroneous premise that cognizance taken is against the offender and not of the offence. The prohibition in Section 142 stretches only to the taking of cognizance of any offence. It is now well-settled that a court takes cognizance only of the offence and not of any offender; It was pointed out by the Supreme Court in Raghubans Dubey v. State of Bihar, AIR 1967 SC 1167, 1169, that "once cognizance has been taken by the Magistrate. ... it is his duty to find out who the offend .....

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rson as accused would not affect the judicial process already adopted in taking cognizance of the offence. 7. In the aforesaid context, a reference to Section 319 of the Code, is necessary. Under Sub-section (1), the court is given power to proceed against any other person who appears to have committed any offence for which such person could be tried together with the accused already arraigned in the case. Once the court decides to proceed against such other person then Sub-section (4) will save .....

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before the learned Single Judge of the Kerala High Court on behalf of the petitioner was that since there was no provision in the Negotiable Instruments Act for impleading a new accused in the case, the Court could not have recourse to the general provisions contained in the Cr.P.C. Such submission was canvassed by the accused to oppose an application filed by the complainant for impleading the firm as an additional accused. The submission was rejected on the ground that Section 142 of the Negot .....

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s raised, was as regards the prohibition in Section 142 to taking of cognizance of any offence. The submission canvassed was that the Court was debarred from taking cognizance of the offence against the partnership firm after the expiry of the period of one month from the date of cause of action envisaged in clause (c) of Section 138 of the Act, and therefore, the firm could not be impleaded after the said period. Such submission was negatived on the reasoning that the Court takes cognizance onl .....

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te of the fact that when the judgment in the case of M/s. Plywood House (supra) was pronounced, the law was altogether different. The law was that even in the absence of a firm, the partner of the firm could be prosecuted. This proposition of law is no longer good after the pronouncement of the Supreme Court in the case of Aneeta Hada (supra), which I have discussed at length while answering the second question. When the cognizance itself is bad, would the position be saved by virtue of Section .....

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A 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other .....

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kground of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it. 63 In Bhavnagar University vs. Palitana Sugar Mills Pvt. Ltd (2003) 2 SCC 111 (vide para 59), the Supreme Court observed:- It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. 64 The endeavour on the part of the learned counsel appearing for .....

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need not go into the question of the legality and validity of the cognizance. 65 The argument at the first blush appears to be quite attractive, but if considered closely, the same deserves to be rejected. 66 A deeming fiction is a supposition of law that the thing is true without inquiring whether it be so or not, that it may have the effect of truth so far as it is consistent with justice. A deeming provision is made to include what is obvious or what is uncertain or to impose, for the purpose .....

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estimation or opinion'; to judge; adjudge; decide; considered to be; to have or to be of an opinion; to esteem; to suppose, to think, decide or believe on considerations; to account, to regard; to adjudge or decide; to conclude upon consideration. (see Major Law Lexicon by P.Ramanatha Aiyar, 4th Edition 2010 Vol.2) 68 In this connection, I deem it necessary to consider few precedents on the true meaning of the word 'deemed' and 'deeming fiction'. 69 In Consolidated Coffee Ltd .....

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rtificial construction of a word or phrase that would not otherwise prevail, but in each case it would be a question as to with what object the legislature has made such a deeming provision. In St. Aubyn and Ors. v/s. Attorney General, 1952 A.C. 15 at p.53 Lord Radcliffe observed thus: "The word 'deemed' is used a great deal in modern legislation. Sometimes it is used to impose for the purposes of a statute an artificial construction of a word or phrase that would not otherwise prev .....

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is well settled. Their Lordships referred to the decisions in East End Dwellings Co. Ltd. v/s. Finsbury Borough Council, 1952 AC 109, Chief Inspector of Mines v/s. Karam Chand Thapar, AIR 1961 SC 838, J.K. Cotton Spinning and Weaving Mills Ltd. v/s. Union of India, AIR 1988 SC 191, M. Venugopal v/s. Divisional Manager, Life Insurance Corporation of India, AIR 1994 SC 1343 and Harish Tandon v/s. Addl. District Magistrate, Allahabad, AIR 1995 SC 676, and came to hold that when a statute creates a .....

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ining this, the Court is to assume all those facts and consequences which are incidental or inevitable corollaries to giving effect to the fiction. But in so construing the fiction it is not to be extended beyond the purpose for which it is created, or beyond the language of the Section by which it is created..." 71 From the aforesaid pronouncements, the principle discernible is that, it is the bounden duty of the court to ascertain for what purpose the legal fiction has been created. It is .....

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the view that by virtue of a legal fiction, it cannot be said that on the date of filing of the complaint, the Court was justified in taking cognizance and issue process against the partners in the absence of the legal entity and no fault could be found so far as the legality and validity of the cognizance is concerned. The legal fiction is altogether for a different purpose and it should not be brought in aid of curing a serious defect or infirmity in the complaint or the order taking cognizanc .....

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policy of the Code is that the offence can be taken cognizance of once only and not repeatedly upon discovery of further particulars. In a given case, the complainant may not even know the names and other particulars of the offenders, and it would, therefore, be sufficient for him to lodge a complaint making the persons who are known as the accused. When such a trial proceeds against the known accused, if the evidence led in trial discloses offences committed by other persons who could be tried .....

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observed in paras 6, 7 and 8 as under: 6. The wording in the section "as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against makes it clear that the company also shall be prosecuted along with the others, who were in charge of the company. Therefore, if the company has not been impleaded as an accused in the proceedings, it will not be in compliance with Section 141 of the Negotiable Instruments Act, 1881, and, therefore, the prosecuti .....

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ty gets cured, and, therefore, the prosecution cannot be quashed. Section 319 of the Code of Criminal Procedure, no doubt permits for impleading another accused in the course of the enquiry or trial when it appeared from the evidence that another person also has committed offence and he also should be tried together with the other accused. Learned counsel for the respondent relies upon the decision in U.P. Pollution Control Board v. Modi Distillery [1988] 63 Comp Cas 77; AIR 1988 SC 1123, in sup .....

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urt observes that the industrial unit having failed to furnish the correct description of the company, it was not open to them to take advantage of their own lapses to quash the proceedings alleging that the company was not properly described. So, in that case, the company was impleaded as a party but the description of the company was found to be a mistake, and, therefore, the apex court observed that this technical flaw of describing the name of the company can be rectified by amending the com .....

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Municipality v. Ram Kishan, , wherein the Supreme Court observes that it is manifestly clear that proceedings against an accused in the initial stage can be quashed only if on the basis of the complaint or the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegations in the complaint, as they are, without adding or subtracting anything, if no offence is made out, then the High Court will be justified in quashing the proceedings in exercise .....

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319 of the Code of Criminal Procedure, no doubt permits for impleading any other accused, who was party to the commission of the offence. But impleading such co-accused under Section 319 of the Code of Criminal Procedure will not have any bearing as to the maintainability of the proceedings against other accused. Section 319 of the Code of Criminal Procedure is not intended for curing the infirmity in the proceedings but only to bring all the culprits before the court when their role in the comm .....

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aint, it was not maintainable against the petitioner. Therefore, accepting the contention of the learned senior counsel, Mr. N. T. Vanamamalai, the proceedings against the petitioner have to be quashed. The view taken by the learned Single Judge of the Madras High Court is quite commendable, and I propose to adopt the same line of reasoning. 75 Suryanarayan (supra) later came to be followed by the Madras High Court in the case of Anandan v. Arivazhagan [1999 (96) Company case 503]. A learned Sin .....

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x v. Vijayan [1994] 81 Comp Cas 910 (Ker); [1993] MWN 192, the Kerala High Court has held that when the managing partner of a firm was prosecuted under Section 138 of the Negotiable Instruments Act for the dishonour of the cheque issued by the managing partner and without impleading the partnership, the partners alone were prosecuted, the complaint is maintainable against the partners alone. Following this decision, the same court in M.O.H. Iqbal v. Uthaman (M) [1995] 82 Comp Cas 726; [1993] MWN .....

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en once the cognizance of the offence was taken by the court, the subsequent impleadment of another person as accused, would not affect the judicial process as it has already commenced by taking cognizance. But these views of the Kerala High Court have not been accepted by this court in a series of decisions and this court has taken a consistent view that a complaint under Section 138 of the Negotiable Instruments Act is not sustainable without complying with the mandatory provision, viz., Secti .....

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mpany without impleading the company itself. As a matter of fact, this court has considered the views taken by the Kerala High Court in Alex v. Vijayan [1994] 81 Comp Cas 910; [1993] MWN 192, which were followed in the later decision in M.O.H. Iqbal v. Utharnan (M) [1995] 82 Comp Cas 726 and this court has not followed the view of the Kerala High Court. Therefore, the respondent is not entitled to contend that the complaint is maintainable even without the partnership K. S. Muthu Constructions. .....

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