2016 (1) TMI 1506 - HC - Indian Laws

Dishonour of Cheque - non-service of notice - name of the applicant was added as an accused in the complaint filed for the offence under Section 138 of Negotiable Instruments Act - cognizance in the case under the provisions of Section 319 of Cr.P.C. - HELD THAT - Looking to the facts and circumstances of the case, an accused can be added in a case when the trial Court has taken cognizance in the case under the provisions of Section 319 of Cr.P.C. However, it is a case of 138 of Negotiable Instruments Act and the complaint can be filed against an accused if a valid demand notice has been given to that accused and payment was not made by him. In the present case, M/s Excel Telecom may be a proprietary firm or a partnership firm, no notice has been given to the applicant either in his personal capacity or being proprietor of the aforesaid firm and when no demand notice was given within the time fixed under Section 138 of Negotiable Instruments Act then no complaint can be prosecuted against the applicant. In the light of the provision of Section 138 of Negotiable Instruments Act when the complaint could not be prosecuted against the applicant then he could not be added as an accused in the complaint by moving a simple amendment application. The trial Court has no power to pass such order as the inherent powers are vested in High Court under Section 482 of Cr.P.C. The impugned order passed by the trial Court appears to be perverse and when the complaint was not maintainable against the applicant for the offence under Section 138 of Negotiable Instruments Act, he could not be made an accused in the case. It is a good case in which the inherent power of this Court conferred under Section 482 of Cr.P.C. can be invoked in favour of petitioner. The petition under Section 482 of Cr.P.C. filed by the applicant Sandeep Sabu is hereby disposed off with the direction that the order dated 21-02- 2013 shall have no effect in the matter and the respondent cannot prosecute the applicant for the complaint filed under Section 138 of Negotiable Instruments Act without issuance of notice of demand within the limitation as prescribed under Section 138 of Negotiable Instruments Act.

Summary

Issues Involved:
The judgment involves a petition filed u/s 482 of the Code of Criminal Procedure, 1973 challenging the order adding the applicant as an accused in a complaint u/s 138 of Negotiable Instruments Act without issuance of a demand notice.

Details of the Judgment:

Challenge to Trial Court's Order:
The applicant challenged the order adding him as an accused in a complaint u/s 138 of Negotiable Instruments Act without proper notice. The trial Court's decision was found to be without jurisdiction as it lacked inherent power u/s 482 of Cr.P.C. to pass such an order.

Validity of Complaint:
The complaint against the applicant was deemed invalid as no demand notice was served as required u/s 138 of Negotiable Instruments Act. The absence of a valid demand notice rendered the complaint unsustainable against the applicant.

Applicability of Apex Court Judgment:
The petitioner's counsel relied on the judgment in "S.R. Sukumar V. S. Sunaad Raghuram" emphasizing the authority of the trial Court in allowing amendments in complaints. However, in the absence of prescribed power u/s Cr.P.C. and a demand notice, the amendment in the present case was not permissible.

Decision and Disposal of Petition:
The High Court found the trial Court's order to be perverse and disposed of the petition u/s 482 of Cr.P.C. in favor of the applicant. The direction was issued that the respondent cannot prosecute the applicant without a valid demand notice u/s 138 of Negotiable Instruments Act.

Compliance and Information:
The High Court directed to send a copy of the order to the trial Court for information and compliance with the decision.