TMI Blog2018 (1) TMI 1644X X X X Extracts X X X X X X X X Extracts X X X X ..... scheme of Section 138 that each one of the ingredients flows from a document which evidences the existence of such an ingredient. The only other ingredient which is required to be proved to establish the commission of an offence under Section 138 is that in spite of the demand notice referred to above, the drawer of the cheque failed to make the payment within a period of 15 days from the date of the receipt of the demand. A fact which the complainant can only assert but not prove, the burden would essentially be on the drawer of the cheque to prove that he had in fact made the payment pursuant to the demand. While in the instant case there is no delay on the part of complainant/non-applicant No.1. Because, complainant had already mentioned the name of applicant no.2/company in the complaint from the beginning and prayed to the Court that cognizance be taken against the applicant no.1 as well as against the applicant no.2/company, which clearly appears from the prayer clause of the complaint - Section 319 of the Cr.P.C. would operate in a situation where during the trial and enquiry, it appears to the trial Court whether as a Magistrate or a Sessions Judge that some other person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heque amount. Since, the nonapplicant No.1 failed to pay the cheque amount within the prescribed period, the non-applicant filed a written complaint before the learned JMFC, Bhopal under Section 138 of the Act. On that complaint, learned Magistrate vide order dated 27/06/2012 took cognizance of the offence under Section 138 of the Act and issued process against applicant No.1. 3. The applicant No.1 has challenged the validity of the order dated 27/06/2012 passed by learned Magistrate by filing Cr.R.No.1132/2013 before this Court on the ground that the questioned cheque was issued by the Director of the company on behalf of Company i.e. M/s Jabalpur Treasure Island Pvt. Ltd. (applicant No.2), so the complaint under Section 138 of the Act against the Director (applicant No.1) is not maintainable for fastening vicarious liability without impleading company as a party in the complaint. During pendency of that Criminal Revision before this Court the nonapplicant has filed an application under Section 141 of the Act read with Section 319 of the Cr.P.C. before the trial Court for impleading the name of applicant No.2 i.e. M/s Jabalpur Treasure Island Pvt. Ltd. in the cause title of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , cognizance cannot be lawfully taken against the company only on the basis of the application filled by the non-applicant no.1 before trial court. Learned counsel further submitted that initially, non applicant No.1 filed the complaint without impleading company as an accused. In the Cr.P.C. there is no provision except under Section 319 to array the accused in the complaint. While under Section 319 of the Cr.P.C. the application filed by the non-applicant No.1 taking cognizance against the applicant No.2 company is not maintainable, because that application has been filed after lapse of two years from the date of taking the cognizance by the trial Court against the applicant No.1. In this regard learned counsel placed reliance on the judgment of Hon ble Apex Court passed in the case of N. Harihara Krishnan Vs. J. Thomas, AIR SC 2017 4125 and submitted that learned revisional Court without appreciating all these facts wrongly allowed the non-applicant s application. 6. On the other hand learned counsel for the non-applicant No.1 submitted that the non-applicant No.1 did not file the application under Section 319 of the Cr.P.C. for taking cognizance against new accused. The non- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstant case non-applicant no.1/complainant neither filed the application before trial for reviewing its earlier order, nor against the cognizance earlier taken by the trial Court vide order dated 27/06/2012 against the applicant no.1, but filled the application for permitting it to amend the complaint by incorporating the name of applicant no.2 (company) in the cause-title of the complainant and for prayer that in addition cognizance should also be taken against the applicant No.2/company. Learned trial Court not only rejected the prayer of the applicant for permitting it to amend the complaint, but also refused to take cognizance against the applicant no.2/company. The order of learned trial Court refusing to take cognizance against the applicant no.2 company comes under the purview of provisions of Section 203 of Cr.P.C. and the same is revisable. 11. Even Hon ble Apex Court in the case of Urmila Devi Vs. Yudhvir Singh reported in (2013) 15 SCC 624 after considering its innumerable decisions declared the legal position in Para No. 22 as under:- (i) The order issued by the Magistrate deciding to summon an accused in exercise of his power under section 200-204 Code of Crimina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the model format of the complaint is not mentioned in the Negotiable Instrument Act. In these circumstances, the definition of the complaint will be seen from Section 2 (d) of the Cr.P.C., which reads thus :- Complaint means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. 16. From the perusal of Section 2(d) of the Cr.P.C. it is evident that in a complaint if any allegation against any person is mentioned, with a view to take action against him, he will be deemed as an accused of the complaint. From the definition of complaint it does not appear that only when the name of person is mentioned in the cause title of the complaint, then only that person shall be treated as accused of that complaint. 17. In the case of Mohd. Yousuf Vs. Smt. Afaq Jahan Anr. 2006 CRI.L.J. 788 (Supreme Court), the Hon ble Apex Court opined that there is no particular format of a complaint. A petition addressed to the Magistrate containing allegations that the offence has been committed and ending with a prayer that the cul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rector of M/s Jabalpur Treasure Island and incharge of and responsibility for the conduct of business of the said company is being headed by accuse in the capacity of Directors and the cheques in question have been issued by accused in the capacity of the Directors of the accused company hence the both of accused responsible for the act of dishonour of cheque. 6. That, the accused has issued cheque No.464768 dated 01/11/2011 for ₹ 100,00,000=00 (Rupees one crore only) drawn on Dena Bank Ltd. Navlakha Branch, Indore 452001 in favour of the complainant. 7. That, the complainant presented the aforesaid cheque on the assurance of the accused for encashment within its validity period but the said cheque could not be honoured by the banker of the accused for the reason Funds Insufficient as shown in the cheque return memo. 8. That, the complainant, looking to the conduct of the accused was left with no option except to issue notice to the accused through Regd. A.D. on 16/11/2011 on the above mentioned address. 9. That, the accused have received the notice and despite the valid service, the accused has failed to make the payment of the aforesaid cheques to the complain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t as held by this Court in the case of Pandit Gorelal (supra) and also by Hon ble Apex Court in the case of S.R.Sukumar Vs. S.Sunaad Raghuram, (2015) 9 SCC 609, wherein Hon ble Apex Court held that what is discernible from U.P. Pollution Control Board case [(1987) 3 SCC 684 : 1987 SCC (Cri) 632] is that an easily curable legal infirmity could be cured by means of a formal application for amendment. If the amendment sought to 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. 23. Although, non-applicant No.1 filed the application before the trial Court under Section 319 of the Cr.P.C read with Section 141 of the Act, wherein neither in Section 141 of the Act, nor in Section 319 of the Cr.P.C provisions for permitting complainant to amend the complaint are mentioned, but it is a settled position of law that a mere non-mentioning or wrong mentioning of a provision in an application is not a ground to reject an app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiated on the basis of a written complaint made by the payee of a cheque. Obviously such complaints must contain the factual allegations constituting each of the ingredients of the offence under Section 138. Those ingredients are: (1) that a person drew a cheque on an account maintained by him with the banker; (2) that such a cheque when presented to the bank is returned by the bank unpaid; (3) that such a cheque was presented to the bank within a period of six months from the date it was drawn or within the period of its validity whichever is earlier; (4) that the payee demanded in writing from the drawer of the cheque the payment of the amount of money due under the cheque to payee; and (5) such a notice of payment is made within a period of 30 days from the date of the receipt of the information by the payee from the bank regarding the return of the cheque as unpaid. It is obvious from the scheme of Section 138 that each one of the ingredients flows from a document which evidences the existence of such an ingredient. The only other ingredient which is required to be proved to establish the commission of an offence under Section 138 is that in spite of the demand notice referred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned all the five ingredients are pleaded regarding applicant No.2 company and name of the applicant No.2 company is also mentioned as discussed above. 28. In that case Hon ble Apex Court rejected the complainant s application on the ground of delay observing that No doubt Section 142 authorises the Court to condone the delay in appropriate cases. We find no reason to condone the delay. The justification advanced by the respondent that it is during the course of the trial, the respondent realized that the cheque in question was drawn on the account of DAKSHIN is a manifestly false statement. On the face of the cheque, it is clear that it was drawn on account of DAKSHIN. 29. While in the instant case there is no delay on the part of complainant/non-applicant No.1. Because, complainant had already mentioned the name of applicant no.2/company in the complaint from the beginning and prayed to the Court that cognizance be taken against the applicant no.1 as well as against the applicant no.2/company, which clearly appears from the prayer clause of the complaint as discussed above. 30. Section 319 of the Cr.P.C. would operate in a situation where during the trial and enqu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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