TMI Blog2020 (3) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... . which has not been framed against accused company and only against the petitioner who is an individual, there are force in the submission of learned counsel for petitioner that cheque in question is issued by him in the capacity of signatory of the company and not as an individual, however, without commenting much on the merits of the case, since compensation amount has already been paid and the fact that petitioner has already undergone 23 days in judicial custody, I hereby while maintaining the conviction, release the petitioner on sentence already undergone. Since the sentence awarded to the petitioner is less than two years and it is a first conviction against the petitioner, therefore, I hereby give him benefit of Section 12 of Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 05.01.2012 for ₹ 1,00,000/- drawn on Allahabad Bank, Vasundhra, Ghaziabad. The said cheque on presentation was dishonoured with the remarks Exceeds arrangements . Thereafter respondent sent a legal notice dated 25.01.2012 to petitioner and same was replied and when no payment was received from petitioner, complainant filed the complaint in question. 3. Case of petitioner is that complaint is not maintainable under section 138 and 141 of NI Act as complainant is neither proprietor of M/s Sunlight Aerosol, New Delhi nor Shri Zile Singh is authorized person to file the complaint, nor complainant filed any document on record in support thereof. Moreover, no legal notice was issued to drawer of the cheque i.e. M/s. Bellpoly Moulde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he evidence that is available on judicial record. 6. Learned counsel has drawn attention of this Court to notice under Section 251 Cr.P.C. dated 06.04.2013 framed against petitioner which is reproduced as under:- I Satvir Singh Lamba, MM-0l (West) Delhi do hereby serve the present notice upon the accused Sanjiv Kapoor, S/o Shri O.P.Kapoor, Aged about 50 years, R/o 58, North Avenue, Punjabi Bagh, New Delhi - 26. It is the allegation against you that you had issued a cheque bearing no. 609424 dt. 05.01.2012 for ₹ 1,00,000/- drawn on Allahabad Bank, Vasundhra, Ghaziabad-201012 in favour of complainant in discharge of your legal debt/liability towards the complainant. On presentation by the complainant with its banker got dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade an accused as a partner of the firm. Thus, he had no opportunity to defend himself as an accused. He only defended the firm as its partner. Therefore, it is only the partnership firm which is liable to be convicted in the aforesaid four complaints. 9. Further relied upon the case of Himanshu vs. B. Shivamurthy And Anr.: (2019) 3 SCC 797 wherein the judgment of the High Court was questioned on two grounds before the Supreme Court. Firstly, the appellant could not be prosecuted without the company being named as an accused. The cheque was issued by the company and was signed by the appellant as its Director. Secondly, it was urged that the observation of the High Court that the company can now be proceeded against in the complain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut compliance with the proviso to Section 138, the High Court was in error in holding that the company could now be arraigned as an accused. 14. We, accordingly, are of the view that the High Court was in error in rejecting the petition under Section 482 CrPC. We hence allow the appeal and set aside the judgment of the High Court. In consequence, the complaint, being CRP No. 27 of 2004 shall stand quashed. 10. Learned counsel appearing on behalf of respondent/complainant argued that the complaint is filed against M/s. BELLPOLY MOULDERS PVT LTD, through proprietor Sanjeev Kapoor (the petitioner herein). He submits that though charges have not been properly framed by the Trial Court, the petitioner did not challenge the charge frame ..... X X X X Extracts X X X X X X X X Extracts X X X X
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