2022 (5) TMI 900 - HC - Indian Laws

Dishonor of Cheque - Insufficient Funds - It is submitted that the respondent was not able to establish the status and role in the accused Company or in what capacity he issued the cheques in question - who was the drawer of the cheque in question? - HELD THAT - Although the cheque was the signed by the respondent, the cheque issued to the petitioner bore the name of the accused Company as the account holder, being a separate entity from its members, and not of the respondent. Moreover, as a requirement under Section 138 of the NI Act, the holder of the cheque that is dishonoured has to make a demand for the payment of the contested 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. It is an admitted fact that the cheque presented by the petitioner was returned dishonoured and the petitioner, as per the mandate of Section 138 of the NI Act, issued a notice intimating the dishonour of cheque solely to the respondent. It was only at the stage of complaint proceedings that the petitioner impleaded the accused company as a party. In the present case, the accused Company was made a party to the complaint case without being furnished a notice, thereby, without it an opportunity to defend itself. In such a situation, had the Company been held guilty of the offence under Section 138 of the NI Act, it would have been without giving it a fair an equitable opportunity of defending itself, since, the fact remains that it was never intimated about the dishonour of the cheque, as per requirement of the Act. The perusal of the cheque also reveals that although it was signed by the respondent, it bears the name of the accused Company and not the respondent, hence, being a separate entity, the prime liability also pertained to the Company as the drawer of the cheque. At the outset, the complaint against the Company, hence, was not maintainable. Since, the drawer of the cheque was the accused Company, solely on the ground that the respondent had signed the cheque, a liability under Section 138 of the NI Act did not arise against him. The complaint was prima facie not maintainable against the Company as drawer of the cheque, the liability towards the respondent also did not arise keeping in view that respondent was acting on behalf of the Company and where the liability against the Company had been discharged, a private and severed liability against the respondent could not have arisen in the circumstances of the instant matter - this Court does not find any error, illegality or impropriety in the impugned order dated 13th September, 2017 passed by learned Additional Sessions Judge, Tis Hazari Courts, New Delhi. Petition dismissed.

Issues Involved:
1. Legality of the summoning order under Section 138 of the Negotiable Instruments Act, 1881.
2. Applicability of the judgment in Aneeta Hada vs. Godfather Travels & Tours (P) Ltd.
3. Maintainability of the complaint against the respondent without making the company a party.
4. Dismissal of the application under Section 216 of the Cr.P.C.
5. Proper appreciation of facts and evidence by the learned ASJ.

Issue-wise Detailed Analysis:

1. Legality of the Summoning Order under Section 138 of the NI Act:
The petitioner filed a complaint under Section 138 of the NI Act alleging that the respondent issued a cheque that was dishonoured due to "Insufficient Funds." The learned Metropolitan Magistrate issued a summoning order. The respondent challenged this order, and the learned ASJ set aside the summoning order, stating that the company, being the drawer of the cheque, was not made a party initially, which was a necessary requirement under Section 138 of the NI Act.

2. Applicability of the Judgment in Aneeta Hada vs. Godfather Travels & Tours (P) Ltd.:
The respondent's counsel argued that the petitioner failed to make the company a party to the complaint, citing the judgment in Aneeta Hada, which mandates that if a company is the drawer of the cheque, it must be made an accused. The court observed that the liability of a private person, acting in his official capacity, cannot be severed from the company's liability unless the company itself is also an accused. The judgment in Aneeta Hada was found applicable, reinforcing that the company must be given an opportunity to defend itself.

3. Maintainability of the Complaint Against the Respondent Without Making the Company a Party:
The court noted that the cheque bore the name of the accused company as the account holder, and the respondent signed it in his capacity as a representative of the company. As per Section 138 of the NI Act, the holder of the dishonoured cheque must notify the drawer, i.e., the company, which was not done initially. The court concluded that the complaint was not maintainable against the respondent alone because the primary liability was on the company.

4. Dismissal of the Application under Section 216 of the Cr.P.C.:
The petitioner argued that the learned ASJ wrongly dismissed the application under Section 216 of the Cr.P.C. without considering its merits. The court, however, upheld the dismissal, stating that the ASJ acted within legal bounds and appropriately appreciated the facts and evidence.

5. Proper Appreciation of Facts and Evidence by the Learned ASJ:
The petitioner contended that the learned ASJ wrongly appreciated the facts and evidence, presuming the company's liability without a trial. The court, however, found no error, illegality, or impropriety in the ASJ's order. The ASJ's decision was based on a proper appreciation of the facts and material on record, maintaining that the petitioner failed to proceed against the drawer of the cheque, i.e., the company, in accordance with the law.

Conclusion:
The court dismissed the petition, upholding the learned ASJ's order, which was passed in accordance with the law and proper appreciation of facts and evidence. The complaint against the respondent was not maintainable without making the company a party, and the application under Section 216 of the Cr.P.C. was rightly dismissed. The court emphasized the necessity of proceeding against the company as the drawer of the cheque, as mandated by Section 138 of the NI Act and supported by the judgment in Aneeta Hada.

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