2024 (5) TMI 1321 - HC - Indian Laws

Seeking to Quash proceedings u/s 138 of the Negotiable Instruments Act - failure to implead the company as an accused - non-maintainability of the complaint against the petitioner - compliance of the provision u/s 202 CrPC - HELD THAT - Admittedly the accused s only address is clearly is beyond the jurisdiction of the trial Court being the Court at District Malda. The proceedings in this case is u/s 138 of the Negotiable Instruments Act. Following the Five Judge Bench of the Supreme Court in expeditious trial of cases, it is clear that Section 202(2) CrPC is not applicable in the present proceedings which is u/s 138 N.I. Act. Document annexed to the supplementary affidavit filed by the petitioner shows that the complainant served Notice dated 30.11.2016 u/s 138 N.I. Act upon the Petitioner and also the Company Amrit Feeds Limited . Copy of the cheque dated 17.08.2016 shows that the said cheque was also issued by the petitioner on behalf of the company and not from his personal account. Thus not impleading the company in this case along with the petitioner, being the Managing Director of the complaint, makes the complaint in this case not maintainable. In the present case - a) The company has not been made an accused nor was any notice served upon the company, though the cheque was issued on behalf of the company. b) The petitioner has been made an accused as the person, who signed and issued the cheque. Therefore, in the absence of the company being arraigned as an accused, a complaint against the petitioner is not maintainable Himanshu vs. B. Shivamurthy Anr. 2019 (3) TMI 294 - SUPREME COURT . CRR is allowed - The proceedings in connection with Complaint Case u/s 138 of the Negotiable Instruments Act, pending before the Court of the Learned Judicial Magistrate, Malda and all orders passed therein in connection with the above mentioned complaint case, is hereby quashed in respect of the petitioner.

Summary

Issues:
Quashing of proceedings under Section 138 of the Negotiable Instruments Act due to non-impleadment of the company as an accused and lack of notice served upon the company.

Analysis:
The petitioner, as the Managing Director of a registered company, was accused under Section 138 of the Negotiable Instruments Act in a complaint case. The petitioner argued that the company, in whose name the check was issued, was not impleaded as an accused, which is essential for such cases. The Court noted that the accused's address was beyond the jurisdiction of the trial court in Malda. The petitioner challenged the process issued against them without considering the requirements under Section 202 of the Code of Criminal Procedure.

The Court referred to Section 200 and Section 202 of the Cr.P.C., highlighting the procedures for examining the complainant and postponing the issue of process against the accused residing outside the court's jurisdiction. The judgment cited a Supreme Court ruling on expeditious trials under Section 138 of the NI Act, emphasizing the examination of witnesses on affidavit and the non-applicability of Section 202(2) Cr.P.C. in such cases.

The complaint against the petitioner was based on their role as the Managing Director of the company, as indicated in the cause title and the complaint itself. The petitioner had issued a check on behalf of the company, and a notice under Section 138 N.I. Act was served on both the petitioner and the company. However, the company was not impleaded in the case alongside the petitioner, making the complaint not maintainable according to legal precedents.

Drawing parallels to a Supreme Court case, the judgment concluded that without arraigning the company as an accused and serving notice upon it, the complaint against the petitioner, solely as the signatory of the check, was not maintainable. Consequently, the Court allowed the revision, quashing the proceedings under Section 138 of the NI Act pending before the Judicial Magistrate in Malda and all related orders.

The judgment directed the Trial Court to comply with the order, disposed of connected applications, and vacated any interim orders. It also instructed the provision of a certified copy of the order to the parties upon formalities' completion.