TMI Blog2018 (7) TMI 2201X X X X Extracts X X X X X X X X Extracts X X X X ..... , which was allowed on 10.4.2017. Therefore, upto this stage, the Magistrate has not applied his mind to the contents of the complaint. Therefore, the order dated 10.4.2017 passed by the Magistrate cannot be said to be illegal - there is no iota of doubt that in a case under section 138 of the N.I. Act, if the company on whose behalf the disputed cheque was issued was not impleaded, can be subsequently impleaded. However, the only rider to the aforesaid proposition is that the material particulars in respect of the same should be present in the complaint filed under section 138 of the N.I. Act or else the same being barred by limitation cannot be permitted at a belated stage. In the present case, the complaint was filed on 20.4.2016 and the application to summon the company as an additional accused was filed on 23.9.2016. The omission to implead the company as an accused/opposite party was not such an infirmity which could not have been allowed to be cured as all material particulars necessary for implicating the company as an accused were already pleaded in the complaint dated 20.4.2016. Therefore, there is no illegality was committed by the Court below in passing the order dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 2. I have heard Mr. V.P. Srivastava, the learned Senior Counsel assisted by Mr. Ansul Rajan Srivastava for the applicants, the learned A.G.A. for the State and Mr. Rahul Sripat assisted by Mr. Amithabh Agarwal and Mr. Ishir Sripat for the opposite party no. 2. 3. Criminal Misc. Application No. 12997 of 2018 has been filed by M/S. Usher Agro Ltd. challenging the order dated 16.02.2018 passed by the Sessions Judge, Bulandshahar in Criminal Revision No. 86 of 2018 (Usher Agro Ltd. Vs. State of U.P. and another) as well as the summoning order dated 10.04.2017 passed by the Additional Chief Judicial Magistrate, Anoopshahar, District-Bulandshahar in Complaint Case No. 1221 of 2016 (Smt. Kumkum Vs. Manoj Pathak) under Section 138 N.I. Act, P.S.-Anoopshahar District-Bulandshahar. 4. Criminal Misc. Application No. 13085 of 2018 has been filed by Manoj Pathak challenging the order dated 18.08.2017 passed by the Sessions Judge, Bulandshahar in Criminal Revision No. 344 of 2016 (Manoj Pathak Vs. State of U.P. and another) as well as the summoning order dated 28.06.2016 passed by the Additional Chief Judicial Magistrate, Anoopshahar, District-Bulandshahar under Section 138 N.I. Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dshahar upon consideration of the allegations made in the complaint and the evidence filed alongwith the same, summoned the applicant Manoj Pathak in the above mentioned complaint case vide summoning order dated 28.06.2016. 12. Feeling aggrieved by the summoning order dated 28.06.2016, the applicant Manoj Pathak preferred a criminal revision before the District Judge Bulandshahar which was registered as Criminal Revision No. 344 of 2016. 13. From the perusal of the Memo of Criminal Revision filed by the applicant Manoj Pathak it is apparent that the summoning order dated 28.06.2016 was challenged on five grounds. Firstly, it was pleaded that the summoning order dated 28.06.2016 is unjust and illegal. Secondly, it was submitted that the summoning of any accused in a criminal case cannot be done casually. The same can be done only after the exercise of due diligence taking into consideration the facts of the case and the relevant law. However, the Magistrate while passing the impugned summoning order completely ignored the same. Next it was pleaded that the complainant in his complaint has alleged that there was commercial relationship in between the complainant and the Company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he complaint. Further the revisional court relied upon the judgment of the Apex Court in the Case of Haryana State Corporation Supply and Marketing Federation limited Vs. Jayam Textile and Ors, AIR 2014 SC 196, and held that procedure is the hand made to justice. As the company has already been impleaded as an accused/opposite party in the complaint filed by the complainant, no occasion arises to entertain the revision. 17. Subsequently, the newly summoned accused/opposite party namely M/s. Usher Agro Ltd. challenged the summoning order dated 10.04.2017 passed by the Magistrate whereby the Company, namely, M/s. Usher Agro Ltd., was summoned under Section 319 Cr.P.C. by filing a criminal revision before the District Judge, Bulandshahar. The same was registered as Criminal Revision No. 86 of 2018 (Usher Agro Ltd. Vs. State of U.P. And another). 18. From the perusal of the memo of revision, it is apparent that the aforesaid criminal revision was filed on the grounds that the impugned summoning order is illegal and arbitrary. Secondly, the application under section 319 Cr.P.C. was not maintainable as it had been filed at inappropriate stage. Therefore, the Magistrate by taking co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment payable under the disputed cheque. 20. Thus, aggrieved by the summoning order dated 10.04.2017 and the order dated 16.02.2018 passed by the revisional court dismissing the criminal revision preferred against the summoning order dated 10.04.2017 by the Company namely M/s. Usher Agro Ltd. Criminal Misc. Application No. 12977 of 2018 (Usher Agro Ltd. Vs. State of U.P. And another) has been filed before this Court. Similarly against the summoning order dated 28.06.2016 passed by the Magistrate summoning the original accused/opposite party namely Manoj Pathak and the order dated 18.08.2017 passed by the revisional court dismissing the criminal revision filed by the original accused/opposite party no. 1 in the complaint challenging the summoning order dated 28.06.2016, Criminal Misc. Application No. 13085 of 2018 (Manoj Pathak Vs. State of U.P. And another) has been filed before this Court. 21. Mr. V.P. Srivastava, the learned Senior Counsel assisted by Mr. Ansul Rajan Srivastava in challenge to the impugned orders submitted that the summoning order dated 28.06.2016 passed by the Magistrate summoning the opposite party no. 1, Manoj Pathak is manifestly illegal. According to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he application filed by the complainant purported to be under Section 319 Cr.P.C., no evidence had been recorded by the Magistrate. To lend support to the aforesaid submission, reliance is placed upon the judgment of the Apex Court in the case of Hardeep Singh etc. etc. Vs. State of Punjab and others etc. reported in 2014 (3) SCC 92. 24. Lastly, it is urged by the learned Senior Counsel that the scope of Section 319 Cr.P.C. is limited only to post cognizance stage when complicity of person other than those named as offender comes to light from the evidence recorded in the course of enquiry or trial. Reliance in this regard is placed upon the judgment of the Apex Court in the case of Kishun Singh and Ors. Vs. State of Bihar, 1993 (2) SCC 16. 25. Mr. Rahul Sripat, Advocate assisted by Mr. Amitabh Agarwal and Ishir Sripat appearing for the opposite party no. 2 vehemently opposed the submissions raised by the learned Senior Counsel for the applicants. According to the learned counsel appearing for the opposite party no. 2, the case in hand is squarely covered by the judgment of the Madhya Pradesh High Court in the Case of Manish Kalani and another Vs. Housing and Urban Developmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - (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, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. 141. Offences by companies.--(1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this subsection shall render any person liable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciate the respective submissions, it is imperative to have the scheme of the Act, which has been considered by the Apex Court in the case of N. Harihara Krishnan Vs. Thomas (Supra). Paragraphs 23 and 24 of the said judgment which deal with the aforesaid issue are reproduced hereunder:- 23. The scheme of the prosecution in punishing under Section 138 of THE ACT is different from the scheme of the Cr.P.C. Section 138 creates an offence and prescribes punishment. No procedure for the investigation of the offence is contemplated. The prosecution is initiated 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused. The offence under Section 138 is person specific. Therefore, the Parliament declared under Section 142 that the provisions dealing with taking cognizance contained in the Cr.P.C. should give way to the procedure prescribed under Section 142. Hence the opening of non-obstante clause under Section 142. It must also be remembered that Section 142 does not either contemplate a report to the police or authorise the Court taking cognizance to direct the police to investigate into the complaint. 30. Having taken note of the provisions of sections 138, 141 and 142 of the N.I. Act, the scheme of the Act as explained by the Apex Court, the facts of the case as are on the record, the submissions raised by the counsel for the parties, the court finds that the following questions arise for determination in the present criminal misc. applications:- (I) Whether in a complaint filed under Section 138 N.I. Act in respect of an offence committed by a company, the company is a necessary and proper party, in view of Section 141 of the N.I. Act or not. (ii) Whether the failure on the part of the complainant to implead the company as an accused/opposite party in the complaint is fatal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission of offence by the company is an express condition precedent to attract the vicarious liability of others. Thus, the words as well as the company appearing in the Section make it absolutely unmistakably clear that when the company can be prosecuted, then only the persons mentioned in the other categories could be vicariously liable for the offence subject to the averments in the petition and proof thereof. One cannot be oblivious of the fact that the company is a juristic person and it has its own respectability. If a finding is recorded against it, it would create a concavity in its reputation. There can be situations when the corporate reputation is affected when a director is indicted. 43. In view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the dragnet on the touchstone of vicarious liability as the same has been stipulated in the provision itself. We say so on the basis of the ratio laid down in C.V. Parekh (supra) which is a three-Judge Bench decision. Thus, the view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The prosecution is initiated 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase in the complaint above-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. 31. So, in the peculiar facts and circumstances of the case the application filled by the applicants for taking cognizance against applicant No. 2 company comes under the purview of Section 190(1) (a) of the Cr.P.C. and not under Section 319 of Cr.P.C. Because the name of the applicant No. 2/company as an accused and the basis of its accusation were already mentioned in the complaint at the time of its filling. It is the fault of the trial Court which only took cognizance against the Director and did not take cognizance against the company, which can be cured by the trial Court at any time. There is no bar under Section 190 of the Cr.P.C. that once the process is issued against some accused, on the next date, the Magistrate cannot issue process to some other person against whom there is some material on record. 36. Upon perusal of the complaint filed by the complainant opposite party No. 2, it is apparent that it has categorically been averred that the cheque in question has been issued by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing the amendment application and the impugned order does not suffer from any serious infirmity warranting interference in exercise of jurisdiction under Article 136 of the Constitution of India. In the present case, the Court finds that the complaint was filed on 30.5.2016. The summoning order was passed on 28.6.2016, the application for impleadment and to summon the additional accused was filed on 23.9.2016, which was allowed on 10.4.2017. Therefore, upto this stage, the Magistrate has not applied his mind to the contents of the complaint. Therefore, the order dated 10.4.2017 passed by the Magistrate cannot be said to be illegal. 38. Thus, upon perusal of the aforesaid paragraphs, there is no iota of doubt that in a case under section 138 of the N.I. Act, if the company on whose behalf the disputed cheque was issued was not impleaded, can be subsequently impleaded. However, the only rider to the aforesaid proposition is that the material particulars in respect of the same should be present in the complaint filed under section 138 of the N.I. Act or else the same being barred by limitation cannot be permitted at a belated stage. 39. From the perusal of the complaint fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he order dated 10.4.2017 on the application dated 23.9.2016, filed by the complainant for summoning the company as an accused. Similarly, no illegality or a jurisdictional error was committed by the revisional court in dismissing the revision filed by the newly impleaded accused/opposite party no. 2 in the complaint namely, M/s. Usher Agro Private Ltd. 40. Coming to the third question involved in the case i.e. Whether the company namely M/s. Usher Agro Ltd. Could have been summoned under section 319 Cr.P.C. even when no evidence had been recorded by the court concerned. In addition to the aforesaid, an ancillary question shall also arise as to whether the Court below could have summoned the applicant M/s. Usher Agro Ltd, even when the scope of section 319 Cr.P.C. is limited only to post cognizance stage when complicity of person other than those named as an offender comes to light from the evidence recorded in the course of enquiry or trial. 41. The answer to the said question has been considered in paragraphs 22, 23 and 26 of the judgment in Manish Kalani (Supra) case and therefore, the issues settled therein need not be repeated again. 42. As already noted above, there i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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