Application U/S.482 No.12977 of 2018,Application U/S.482 No.13085 of 2018

9th July, 2018.

Petitioner Counsel: LAV SRIVASTAVA, G.A., AMITABH AGARWAL, RAJAN SRIVASTAVA, Adv., Shri V.P. SRIVASTAVA
Respondent Counsel: ISHIR SRIPAT, RAHUL SRIPAT

Cases Cited:
Anil Hada Vs. Indian Acrylic Limited, 2000 ALL MR (Cri) 136 (S.C.)=(2000) 1 SCC 1 [Para 16]
Haryana State Corporation Supply and Marketing Federation limited Vs. Jayam Textile and Ors, 2014 ALL SCR 1617=AIR 2014 SC 196 [Para 16]
Bilakchand Gyandchand Co. Vs. A Chinnaswami, 1999(3) ALL MR 413 (S.C.)=(1999) 5 SCC 693 [Para 19,26,39]
N. Harihara Krishnan Vs. Thomas, 2017 ALL SCR (Cri) 1752=AIR 2017 SC 4125 [Para 19,22,29,39]
Anita Hada Vs. Godfather Travels and Tours Pvt. Ltd, 2012 ALL SCR 1424=2012 (5) SCC 661 : 2012 Law Suit (SC) 244 [Para 21,31]
Hardeep Singh etc. etc. Vs. State of Punjab and others etc.etc., 2014 ALL MR (Cri) 801 (S.C.)=2014 (3) SCC 92 [Para 23,26]
Kishun Singh and Ors. Vs. State of Bihar, 1993 ALLMR ONLINE 62 : 1993 (2) SCC 16 [Para 24]
Manish Kalani and another Vs. Housing and Urban Development Corporation Ltd. (HUDCO) and another, M.Cr.C.No.16285/2016, Dt.30.01.2018 (M.P.) [Para 25,34,41]
Rajneesh Agarwal Vs. Amit J. Bhalla, 2001 ALL MR (Cri) 1508 (S.C.)=(2001) 1 SCC 631 [Para 26,39]
Mohd. Yousuf Vs. Afaq Jahan (SMT) and another, (2006) 1 SCC 627 [Para 26]
Bhimappa Basappa Bhu Sannavar Vs. Laxman Shivarayappa Samagounda and others, 1970 ALLMR ONLINE 165 (S.C.) : (1970) 1 SCC 665 [Para 26]
S. R. Sukumar Vs. S. Sunaad Raghuram, 2015 ALL MR (Cri) 2898 (S.C.)=(2015) 9 SCC 609 [Para 26,37]

JUDGMENT

Rajeev Misra, J. :- These two Criminal Misc. Applications under Section 482 Cr.P.C. arise out of Complaint Case No. 1221 of 2016 (Smt. Kumkum Vs. Manoj Pathak) under Section 138 N. I. Act, P.S.- Anoopshahar District-Bulandshahar. As such both the criminal misc. applications are inter-connected. Therefore, the same are being disposed of finally by a common judgement.

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, P.S.- Anoopshahar District-Bulandshahar.

5. Brief facts giving rise to the present criminal misc. applications are that a buisiness deal took place between the Company, namely, M/s Usher Agro Pvt. Ltd. (hereinafter referred to as the Company) and M/s Balaji Traders Navin Mandi, Anoopshahar, Bulandshahar of which the opposite party no.2, Smt. Kumkum wife of Vipin Kumar is the sole proprietor. As per the said deal, the Company was to purchase paddy valuing 15 lacs from M/s Balaji Traders Navin Mandi Anoopshahar, Bulandshahar.

6. Accordingly the Company gave a cheque valued at Rs. 15 lakhs bearing no.000318 dated 18.04.2016 drawn on Allahabad Bank, Kosikala Branch, District-Mathura pertaining to Account No.50248345215 to the Firm M/s Balaji Traders. The said cheque was signed by Manoj Pathak, the authorized signatory of the Company, one of the applicants herein.

7. The cheque was presented in the concerned bank i.e., Allahabad Bank, Anoopshahar Branch, District-Bulandshahar by the opposite party no.2, namely, Smt. Kumkum,. However, the same was not encashed on account of insufficient funds. As such, a memo dated 18.04.2016 was sent by the Bank namely Allahabad Bank, Anoopshahar Branch, District-Bulandshahar informing the opposite party no.2 that the cheque dated 18.04.2016 could not be encashed for lack of sufficient funds.

8. Consequently, as per the mandate of Section 138 of the N. I. Act the opposite party no.2 through her counsel sent a legal notice dated 20.04.2016 to the applicant Manoj Pathak asking him to pay the amount payable under the disputed cheque. The said legal notice was replied vide reply dated 10.05.2016. Thereafter, a rejoinder dated 19.05.2016 was sent in response to the reply dated 10.05.2016.

9. As in spite of the notice dated 20.04.2016, the amount payable under the disputed cheque was not paid, the opposite party no.2 initiated proceedings under Section 138 N. I. Act by filing a complaint dated 30.05.2016. The same was registered as Complaint Case No. 1221 of 2016 (Smt. Kumkum Vs. Manoj Pathak) under Section 138 N. I. Act, P. S. -Anoopshahar, District-Bulandshahar.

10. The complainant opposite party no.2 in support of the complaint filed her affidavit, copy of the notice dated 10.05.2016, the cheque dated 18.04.2016 and the Memo of the cheque dated 18.04.2016.

11. The A. C. J. M., Anoopshahar, District-Bulandshahar 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 Pathk 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 of which the revisionist Manoj Pathak is the Director. The disputed cheque was given by the Company to the complainant, and therefore, the provisions of Section 141 N. I. Act are fully applicable. However, the Company namely M/s Usher Agro Ltd has not been impleaded as an accused/opposite party in the complaint filed by the opposite party no.2 herein namely Smt. Kumkum nor any notice was given by the complainant to the Company. The Magistrate while passing the impugned summoning order has ignored the aforesaid important fact. Lastly, it was stated that the liability of the Director of a Company can be fixed only when the Company has been put to notice regarding the liability and the Company has been impleaded as an accused/opposite party in the complaint, which is the mandate of Section 141 N. I. Act and also as per the settled law. It was also urged that the complaint filed by the complainant is not maintainable for non-joinder of the Company as a party to complaint.

14. During the pendency of the aforesaid criminal revision preferred by the original accused/opposite party namely Manoj Pathak, the complainant filed an application dated 23.09.2016 under Section 319 Cr.P.C. before the Magistrate to summon the Company as an accused. The said application came to be allowed by the Magistrate vide order dated 10.04.2017. The company namely, M/s Usher Agro Ltd. through its Managing Director was to be impleaded as an accused/ opposite party No.2 and consequently, summons were issued again to both the accused/opposite parties.

15. Criminal Revision No. 344 of 2016 (Manoj Pathak Vs. State of U.P. And another) filed by the original accused/opposite party no.1 in the complaint challenging the summoning order dated 28.06.2016 came to be dismissed vide order dated 18.08.2017.

16. While deciding the aforesaid revision, the revisional court framed a single point of determination i.e. Whether in the absence of the company as a party to the complaint, the authorized signatory of the company can be summoned under section 138 N.I. Act or not. The revisional court relying upon the judgement of the Apex Court in the case of Anil Hada vs Indian Acrylic Limited reported in (2000) 1 SCC 1 : [2000 ALL MR (Cri) 136 (S.C.)], did not find any illegality in the summoning order dated 28.6.2016 on the ground that the company namely, M/s Usher Agro Ltd. was not impleaded as an accused/opposite party in the complaint. Further the revisional court relied upon the judgement 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 : [2014 ALL SCR 1617], 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 cognizance on such application has failed to consider the relevant law on the subject. Thirdly, it was pleaded that the trial of the complaint case has not yet commenced, therefore, neither any evidence has come forward nor the statement of the complainant has been recorded. In spite of the aforesaid, the Magistrate, without judicious and legal use of his discretion in a mechanical manner, has passed the impugned order. Fourthly, it was submitted that the learned Magistrate in ignorance of the prescribed procedure directed modification in the original summoning order dated 28.6.2016 and further directed to implead the revisionist in the memorandum of complaint whereas, the Magistrate had no jurisdiction to modify the earlier summoning order dated 28.6.2016. Fifthly, it was pleaded that the Magistrate while passing the impugned order dated 10.4.2017 has comletely ignored the fact that no notice under section 138 N.I. Act was ever issued by the complainant to the revisionist. Lastly it was urged that as the order dated 10.4.2017 is erroneous, arbitrary and illegal, the same is liable to be set aside.

19. The aforesaid criminal revision came to be dismissed vide order dated 16.02.2018. The revisional court dismissed the criminal revision filed by the newly impleaded accused/opposite party No.2 i.e. the company namely, M/s Usher Agro Private Ltd. The revisional court placing reliance upon the judgement of the Apex court in the case of Bilakchand Gyanchand Company Vs. A. Chinnaswami, 1999 (5) SCC 693 : [1999(3) ALL MR 413 (S.C.)] held that since the cheque was signed by the Managing Director of the company and notice was given to the Managing Director under section 138 of the N.I. Act, then such a notice is a statutory compliance and no separate notice was required to be given to the company. It was further observed that the Apex Court in the case of N. Harihara Krishnan Vs. Thomas, AIR 2017 SC 4125 : [2017 ALL SCR (Cri) 1752] has held that the offence under section 138 N.I. Act is person specific. Hence, the Managing Director was held to be responsible because he was actually governing the affairs of the company and it is not the case that the application under section 319 Cr.P.C. has been moved as a device to initiate time barred proceedings against the company. Lastly it was held that the notice to the Managing Director was held to be compliance of the legal provisions which shall meet notice to the drawer to make payment 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 the learned Senior Counsel, the disputed cheque dated 18.01.2016 was issued on behalf of the Company, namely, M/s Usher Agro Ltd., and was signed by the opposite party no.1, Manoj Pathak as the authorized signatory of the Company being the Director. On the aforesaid factual premise, he further submits that as per the mandate of Section 141 of the N. I. Act, the Company M/s Usher Agro Ltd., was a necessary and a proper party in the complaint filed by the opposite party no.2 herein. Once the Company, which is a necessary and proper party in a complaint filed under Section 138 of the N. I. Act readwtih Section 141 was not impleaded as an opposite party/accused, no proceedings could be initiated against the Director of the Company. He, therefore, submits that once the complaint filed by the opposite party no.2 giving rise to the present proceedings was not maintainable, the applicant-Manoj Pathak could not have been summoned. The Magistrate, therefore, erred in law and fact in summoning the applicant-Manoj Pathak, as the said summoning order is clearly in ignorance of the settled law. To buttress his submission reliance is placed upon the judgement of the Apex Court in the case of Anita Hada Vs. Godfather Travels and Tours Pvt. Ltd reported in 2012 (5) SCC 661 : [2012 ALL SCR 1424].

22. The learned Senior Counsel next submits that the complaint was filed by the opposite party no.2, Smt. Kumkum on 30.05.2016 whereas the application to summon the Company was filed on 23.09.2016. As such it is submitted that the proceedings under Section 138 of the N. I. Act were barred by limitation against the proposed accused/opposite party no.2, the Company namely M/s Usher Agro Ltd. He further submits that even though Section 142 of the Act provides for condonation of delay in initiating the proceedings under Section 138 of the Act but as there did not exist a truthful or a sufficient cause to condone the delay, the summoning of the Company by the Magistrate vide order dated 10.04.2017 is manifestly illegal. To give strength to the aforesaid submission, reliance is placed upon the judgement of the Apex Court in the case of N. Harihar Krishnan Vs. J. Thomas reported in AIR 2017 Supreme Court, 4125 : [2017 ALL SCR (Cri) 1752].

23. It is then contended that the Company, namely, M/s Usher Agro Ltd. could not have been summoned under Section 319 Cr.P.C. as prior to the passing of the summoning order dated 10.04.2017 on the 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 judgement of the Apex Court in the case of Hardeep Singh etc. etc. Vs. State of Punjab and others etc.etc. reported in 2014 (3) SCC 92 : [2014 ALL MR (Cri) 801 (S.C.)].

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 judgement of the Apex Court in the case of Kishun Singh and Ors. Vs. State of Bihar, 1993 (2) SCC 16 : [1993 ALLMR ONLINE 62].

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 judgement of the Madhya Pradesh High Court in the Case of Manish Kalani and another Vs. Housing and Urban Development Corporation Ltd. (HUDCO) and another, M.Cr.C.No.16285 of 2016 decided on 30.01.2018. It is next submitted that the liability arising out under the disputed cheque has not been disputed. Only technical pleas regarding the maintainability of the proceedings initiated by the complainant before the court below have been raised. He, therefore, submits that the present criminal misc. applications filed by the accused are liable to be dismissed by this Court.

26. He has also relied upon the following judgements of the Apex Court:

1. Bilakchand Gyandchand Co. Vs. A Chinnaswami reported in (1999) 5 SCC 693 : [1999(3) ALL MR 413 (S.C.)]

2. Rajneesh Agarwal Vs. Amit J. Bhalla reported in (2001) 1 SCC 631 : [2001 ALL MR (Cri) 1508 (S.C.)].

3. Mohd. Yousuf Vs. Afaq Jahan (SMT) and another reported in (2006) 1 SCC 627.

4. Bhimappa Basappa Bhu Sannavar Vs. Laxman Shivarayappa Samagounda and others reported in (1970) 1 SCC 665 : [1970 ALLMR ONLINE 165 (S.C.)].

5. S. R. Sukumar Vs. S. Sunaad Raghuram reported in (2015) 9 SCC 609 : [2015 ALL MR (Cri) 2898 (S.C.)]

6. Hardeep Singh etc. etc. Vs. State of Punjab and others etc.etc. reported in (2014) 3 SCC 92 : [2014 ALL MR (Cri) 801 (S.C.)].

27. Learned A.G.A. has adopted the arguments advanced by Mr. Rahul Sripat, learned counsel for the opposite party no.2 in both the criminal misc. applications.

28. Before proceeding to consider the respective submissions of the learned counsel for the parties, it is useful to reproduce the provisions of sections 138, 141 and 142 of the Negotiable Instruments Act, 1881 as the case in hand revolves around the aforesaid sections:-

"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 account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained in this section shall apply unless-

(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 sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence:

[Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter.]

(2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

142. 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, 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 such period.]

(c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138.

(2) The offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction,-

(a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or

(b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated."

29. In order to appreciate the respective submissions, it is imperative to have the sceheme of the Act, which has been considered by the Apex Court in the case of N. Harihara Krishnan Vs. Thomas [2017 ALL SCR (Cri) 1752] (Supra). Paragraphs 23 and 24 of the said judgement 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 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 inspite 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.

24. By the nature of the offence under Section 138 of THE ACT, the first ingredient constituting the offence is the fact that a person drew a cheque. The identity of the drawer of the cheque is necessarily required to be known to the complainant (payee) and needs investigation and would not normally be in dispute unless the person who is alleged to have drawn a cheque disputes that very fact. The other facts required to be proved for securing the punishment of the person who drew a cheque that eventually got dishonoured is that the payee of the cheque did in fact comply with each one of the steps contemplated under Section 138 of THE ACT before initiating prosecution. Because it is already held by this Court that failure to comply with any one of the steps contemplated under Section 138 would not provide "cause of action for prosecution". Therefore, in the context of a prosecution under Section 138, the concept of taking cognizance of the offence but not the offender is not appropriate. Unless the complaint contains all the necessary factual allegations constituting each of the ingredients of the offence under Section 138, the Court cannot take cognizance of the offence. Disclosure of the name of the person drawing the cheque is one of the factual allegations which a complaint is required to contain. Otherwise in the absence of any authority of law to investigate the offence under Section 138, there would be no person against whom a Court can proceed. There cannot be a prosecution without an 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 CrPC 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 and incurable.

(iii) Whether in the absence of any specific provision in the N.I. Act or in the Code of Criminal Procedure regarding impleadment, the court can summon the additional accused or not.

(iv) Whether the summoning of a non applicant as an accused can be done only after the court passing the summoning order, has itself recorded the evidence in the case.

31. The first question is taken first. Section 141 of the N.I. Act which has already been quoted herein above, deals with the offence committed by the company under section 138 N.I. Act. The question posed for consideration is no longer debatable nor res-integra. The three judges judgement of the Apex Court in the case of Aneeta Hada Vs. Godfather Travels & Tours Pvt. Ltd., reported in 2012 Law Suit (SC) 244 : [2012 ALL SCR 1424] has already decided the said question in paragraphs 42 and 43 which are reproduced herein under:-

"42. We have referred to the aforesaid passages only to highlight that there has to be strict observance of the provisions regard being had to the legislative intendment because it deals with penal provisions and a penalty is not to be imposed affecting the rights of persons whether juristic entities or individuals, unless they are arrayed as accused. It is to be kept in mind that the power of punishment is vested in the legislature and that is absolute in Section 141 of the Act which clearly speaks of commission of offence by the company. The learned counsel for the respondents have vehemently urged that the use of the term "as well as" in the Section is of immense significance and, in its tentacle, it brings in the company as well as the director and/or other officers who are responsible for the acts of the company and, therefore, a prosecution against the directors or other officers is tenable even if the company is not arraigned as an accused. The words "as well as" have to be understood in the context.In Reserve Bank of India v. Peerles General Finance and Investment Co. Ltd and others [44] it has been laid down that the entire statute must be first read as a whole, then section by section, clause by clause, phrase by phrase and word by word. The same principle has been reiterated in Deewan Singh and others v. Rajendra Prasad Ardevi and others [45] and Sarabjit Rick Singh v. Union of India [46]. Applying the doctrine of strict construction, we are of the considered opinion that commission 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 expressed in Sheoratan Agarwal (supra) does not correctly lay down law and, accordingly, is hereby overruled. The decision in Anil Hada (supra) is overruled with the qualifier as stated in paragraph 37. The decision in Modi Distilleries (supra) has to be treated to be restricted to its own facts as has been explained by us hereinabove."

32. Thus the complaint filed under section 138 N.I. Act, in respect of an offence committed by a company i.e. where the cheque is issued on behalf of the company would not be maintainable if the company on whose behalf the cheque has been issued is not impleaded as an accused/opposite party in the complaint. Admittedly, in the complaint filed by opposite party no.2 before the court below the company namely M/s Usher Agro Limited was not impleaded as a party to the complaint.

33. This takes me to the second question involved in the present criminal misc. applications i.e. Whether the failure on the part of the complainant to implead the company as an accused/opposite party in the complaint is fatal and incurable.

34. The answer to the above question need not detain me for long. The judgement in the case of Manish Kalani and Anr. Vs. Housing and Development Corporation Ltd. (HUDCO) and Anr., M.Cr.C. No. 16285 of 2016, decided on 30.1.2018 by the Madhya Pradesh High Court and relied upon by the learned counsel for the opposite party No.2 namely Mr. Rahul Shripath is a complete answer to the said question. Learned Senior counsel appearing on behalf of the applicants submitted that the aforesaid judgement cannot be taken as a binding precedence upon this court. The same can have only persuasive value. The legal proposition laid down in the said judgement was not challenged specifically being contrary to the mandate of N.I. Act in reference to section 138 read with section 141 of the same or being contrary to the law as laid down by this court or the apex court. In the absence of any such submission or material placed before me, the limited question which is required to be examined is whether the aforesaid judgement can be relied upon by this court or not.

35. Paragraphs 15, 16, 17, 18, 22, 23, 24, 25, 26, 27 and 31 of the said judgement deal with the issue in hand and are accordingly reproduced herein under:-

"22. The complainant is entitled to amend his complaint filed under Section 138 of the Act 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 application as held by the Hon'ble Apex Court in the case of Adv. Kaptan on Challamance Huchha Gowda v. M.R. Tirumala, (2004) 1 SCC 453.

24. Although there is no provision in the Act and Code of Criminal Procedure to permit the applicant to amend the complaint, but there is no bar in the Code of Criminal Procedure as well as in the Negotiable against permitting the complainant to amend his complaint. Where, there is no bar in the Act and in the Code of Criminal Procedure, this Court in the interest of justice may permit the complainant to amend the complaint, as held by the Hon'ble Apex Court in the case of S.R. Sukumar Vs. S. Sunaad Raghuram (Supra).

25. Although, it is admitted that non-applicant No.1 had not sent notice to the Company before filing of the complaint, but prima facie it appears that before filing the complaint non-applicant No.1 gave notice to the applicant No.1 Manish Kalani, the Managing Director of the Company, who issued the questioned cheque on behalf of the company. So, the notice sent by non-applicant No.1 to applicant No.1 Manish Kalani is also notice to the company as held by the Hon'ble Apex Court in the case of M/s Bilakchand Gyanchand Co. (supra) wherein Hon'ble Apex Court held that notice under Section 138 of the Act sent to the Managing Director of the Company who is signatory of the cheque in question, the complaint is not liable to be quashed on the ground that the notice was not served upon the company. Similarly, Hon'ble Apex Court in the case of Rajneesh Agrawal (supra) also held that the demand notice issued in the name of Director, who has signed the cheque is notice to the drawer Company, therefore the prosecution of non-applicant No.2 Company for the offence under Section 138 of the Act would not be invalid for the reason that the notice was not served upon the Company.

26. The judgment of Hon'ble Apex Court passed in the case of N. Harihara Krishnan Vs. J. Thomas (supra) relied by the learned counsel for the applicants also does not help much to the applicant. In this case Hon'ble Apex Court in pera 32 and 33 of judgement observed as thus :-

32. 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 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 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.

33. By the nature of the offence under Section 138 of THE ACT, the first ingredient constituting the offence is the fact that a person drew a cheque. The identity of the drawer of the cheque is necessarily required to be known to the complainant (payee) and needs investigation and would not normally be in dispute unless the person who is alleged to have drawn a cheque disputes that very fact. The other facts required to be proved for securing the punishment of the person who drew a cheque that eventually got dishonoured is that the payee of the cheque did in fact comply with each one of the steps contemplated under Section 138 of THE ACT before initiating prosecution. Because it is already held by this Court that failure to comply with any one of the steps contemplated under Section 138 would not provide "cause of action for prosecution". Therefore, in the context of a prosecution under Section 138, the concept of taking cognizance of the offence but not the offender is not appropriate. Unless the complaint contains all the necessary factual allegations constituting each of the ingredients of the offence under Section 138, the Court cannot take cognizance of the offence. Disclosure of the name of the person drawing the cheque is one of the factual allegations which a complaint is required to contain. Otherwise in the absence of any authority of law to investigate the offence under Section 138, there would be no person against whom a Court can proceed. There cannot be a prosecution without an 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".

27. While in the instant case 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 the accused as the authorized signatory of the company. In the prayer clause, it has been further mentioned that the accused persons be summoned and punished accordingly. Thus the recital in the complaint clearly goes to show that right from the beginning the complaint filed by the complainant before the Magistrate was not only against the Director namely Manoj Pathak, but also against the company i.e. M/s Usher Agro Pvt. Ltd. Therefore, solely on the ground that when the complaint was filed the name of the company was not mentioned as an accused, it cannot be said that the company was not implicated as an accused. The only default of the complainant is that the has not mentioned the name of the company as an accused in the title of the complaint.

37. Recently the issue as to whether an amendment in a criminal complaint can be made or not has been considered in the case of S.R. Sukumar vs. S. Sunaad Raghuram, reported in (2015) 9 SCC 609 : [2015 ALL MR (Cri) 2898 (S.C.)]. In the aforesaid judgement, the Apex Court after taking into consideration the meaning of the term cognizance, taking cognizance and the law upto that stage held as follows in paragraph 20:-

"19. In the instant case, the amendment application was filed on 24-05-2007 to carry out the amendment by adding paras 11(a) and 11 (b). Though, the proposed amendment was not a formal amendment, but a substantial one, the Magistrate allowed the amendment application mainly on the ground that no cognizance was taken of the complaint before the disposal of amendment application. Firstly, the Magistrate was yet to apply the judicial mind to the contents of the complaint and had not taken cognizance of the matter. Secondly, since summons was yet to be ordered to be issued to the accused, no prejudice would be caused to the accused. Thirdly, the amendment did not change the original nature of the complaint being one for defamation. Fourthly, the publication of poem 'Khalnayakaru' being in the nature of subsequent event created a new cause of action in favour of the respondent which could have been prosecuted by the respondent by filing a separate complaint and therefore to avoid multiplicity of proceedings, the trial court allowed the amendment application. Considering these factors which weighed in the mind of the courts below, in our view, the High Court rightly declined to interfere with the order passed by the Magistrate allowing 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 filed by the complainant/opposite party No.2, the court finds that the necessary particulars with regard to the commission of the offence under section 138 N.I. Act as explained by the Apex Court in paragraph 32 of the judgement in the case of N. Harihara Krishnan Vs. Thomas, AIR 2017 SC 4125 : [2017 ALL SCR (Cri) 1752] are duly satisfied. Therefore, in the facts of the present case, the notice under section 138 of the N.I. Act issued on behalf of the complainant to the opposite party No.2 who is the Managing Director/Authorized Signatory of the company shall also be deemed to be a notice to the company as per the law laid down by the Apex Court in the case of Bilakchand Gyanchand Company Vs. A. Chinnaswami, 1999 (5) SCC 693 : [1999(3) ALL MR 413 (S.C.)] and in the case of Rajneesh Agarwal Vs. Amit J. Bhalla reported in (2001) 1 SCC 631 : [2001 ALL MR (Cri) 1508 (S.C.)]. Apart from the above, there is no specific prohibition either under the N.I. Act or under the Code of Crimianal Procedure which prohibits the amendment of a complaint or the impleadment of an Additional accused subsequent to the filing of the complaint. In the absence of any such prohibition, no illegality can be said to be committed by the Court below in summoning the company as an additional accused pursuant to the order dated 10.4.2017, passed on the application dated 23.9.2016 purported to be under section 319 Cr.P.C. The judgement of the Madhya Pradesh High Court has extensively dealt with the issue that non quoting of a provision or quoting of a wrong provision will not render the order illegal if otherwise, the court has the jurisdiction to pass the order. No such argument was raised that the Magistrate had no jurisdiction to summon the company on an application filed by the complainant subsequent to the filing of the complaint itself. The Court is also not unmindful of the provisions contained in section 142 of the N.I. Act which provides for condonation of delay. 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, I am of the considered opinion that no illegality was committed by the Court below in passing the 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 imleaded 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 judgement in Manish Kalani (Supra) case and therefore, the issues settled thererin need not be repeated again.

42. As already noted above, there is no provision in the N.I. Act or the Code of Criminal Procedure which prohibits the impleadment of a party to the complaint as an additional accused/opposite party. Similarly, there is no provision either under the N.I. Act or the Code of Criminal Procedure providing for impleadment of a person as an accused/opposite party in a complaint.

43. 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 persons are also involved in the commission of the offence, for which he is holding the trial, he could invoke Section 319 of the Cr.P.C. for summoning them to be arrayed as an accused. It is not the case where applicant earlier did not mention the name of the company as an accused and the basis of its acquisition and for the first time by means of application it mentioned the name of the company as an accused and prayed before the Court to take cognizance against it.

44. 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) 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 summoned the Director alone and left the company. Such defect is not an incurable defect and can be cured by the trial Court at any time. There is no bar under Section 190 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.

45. It is worth noticing that in both the criminal misc. applications only technical pleas have been raised regarding the validity/maintainability of the complaint case filed by opposite party no.2 under section 138 of the N.I. Act. The liability arising out of the disputed cheque has not been disputed. The entire affidavits, filed in support of both the criminal misc. applications are silent regarding the same.

46. For all the reasons given herein above, none of the submissions raised by the learned counsel for the applicants are found to be cogent enough to dislodge the proceedings of Complaint Case No. 1221 of 2016 (Smt. Kumkum Vs. Manoj Pathak) under Section 138 N. I. Act, P.S.- Anoopshahar District-Bulandshahar. Thus both the criminal misc. applications fail and therefore liable to be dismissed. They are accordingly dismissed. However, the parties shall bear their own costs.

47. The complaint case giving rise to the present applications has been pending since the year 2016. As per the mandate of the N.I. Act the proceedings under section 138 N.I. Act ought to be concluded within six months. Accordingly, the court below is directed to expedite the hearing of the complaint case by fixing short dates and without granting any unnecessary adjournment.

Applications dismissed.