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2023 (8) TMI 598 - CALCUTTA HIGH COURTDishonour of Cheque - acquittal of the accused - acquitting the private respondents on the ground of maintainability of the instant case in terms of Section 141 of the Negotiable Instruments Act - HELD THAT:- The prosecution of other persons under Section 138 NI Act is permissible only when the Company is named as an accused in the complaint. Where the Company due to, inter alia, inadvertence of the complainant may not have been named as one of the accused(s) in the cause title of complaint, however, from a perusal of such complaint, it can be observed that specific averments/ingredients for the commission of offence under Section 138 NI Act against the company are made out. Under such circumstances, considering the same as mere curable infirmity, Courts have permitted the complainant to amend the complaint by adding the name of Company as one of the accused(s). In the present case, the petition of complaint itself starts with the statement “It is the case of the complainant that he as a proprietor of M/s. Maa Manasha Enterprise had made payment to Delicious Agro Food Pvt. Ltd. for food product, but the said company had not delivered any such food item and accused being director of the said company had returned the money by issuing a cheque in favour of the complainant”. The accused/petitioner had on application before the trial court also stated that the complainant had entered into the transaction with the company, “Delicious Agro Food Pvt. Ltd.”. The petitioner as director of the company was the person who issued the cheque in this case and the transaction was carried out by the petitioner as director on behalf of the company. As such there is clear averments in the complaint itself, against the company and also its director. The trial court shall permit the complainant to amend the petition of complaint and then proceed with the case in accordance with law - Appeal allowed.
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