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TMI Blog2017 (4) TMI 827X X X X Extracts X X X X X X X X Extracts X X X X ..... e N.I. Act. 3. The applicant herein has been arraigned as an accused in her capacity as the authorized and responsible officer of a company by name B.M. Infrastructure Industries Pvt. Ltd.. The cheques in question were drawn by the husband of the applicant herein namely Mukeshbhai, original accused No.1 in the complaint. The applicant herein is sought to be fastened with the vicarious liability under section 141 of the N.I. Act. I am afraid both the complaints should fail in the absence of the company not being arraigned as an accused in the complaint. This issue is squarely covered by the decision of the Supreme Court in the case of Aneeta Hada vs. Godfather Travels & Tours Pvt. Ltd., (2012) 5 SCC 661. 4. At this stage, Mr. Hardik Shah, the learned counsel appearing for the complainant submitted that it was just a typographical error on the part of the complainant in not arraigning the company as an accused. Mr. Shah submits that, his client has moved an application before the court concerned under section 319 of the Cr.P.C to implead the company as an accused in the complaint. I am afraid the application under section 319 of the Cr.P.C to implead the company as an accused at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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.] 38 The plain reading of the two sections referred to above would indicate that steps, for lodging of a complaint under Section 138 of the Act, are required to be taken within the time frame provided under Section 138 of the Act. As regards filing of a complaint for an offence under Section 138 of the Act, Section 142 of the Act, which deals with cognizance of offences punishable under Section 138, lays down a necessary precondition i.e. a written complaint by the payee or the holder of the cheque in due course and prescribes a special period of limitation within which the complaints must be filed (clause (b)). Clause (b) of Section 142 read wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve years, the complainant can file an application under Section 319 of the Cr.P.C. to implead the partnership firm as an accused to make the complaint maintainable and pray before the Magistrate to issue process to the firm as a legal entity? (IV) If the complainant is permitted to do so, could it not be said that indirectly he is substantially amending the complaint thereby changing the entire complexion of the same which is otherwise not permissible in law. (V) Could it be said that although the cognizance was taken in the year 2004, yet the impleading of the partnership firm, after twelve years, would be in consonance with Section 142(b) of the Act read with Clause (a)? To put it in other words, could it be said that the complaint against the partnership firm is made within one month from the date on which the cause of action arises under Clause (c) of Proviso to Section 138 of the Act i.e. on expiry of period of fifteen days from the date of receipt of notice of dishonour by the accused? (VI) Will the situation be saved by virtue of Section 319 of the Cr.P.C., which is sought to be invoked in the present case? 42 I am of the view that Section 319 of the Cr.P.C. has n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is, whether against the newly added accused, cognizance will be supposed to have been taken on the Magistrate's own information under S. 190(1)(c), or only in the manner in which cognizance was first taken of the offence against the accused..................The question is important, because the methods of inquiry and trial in the two cases differ. About the true position under the existing law, there has been difference of opinion, and we think it should be made clear. It seems to us that the main purpose of this particular provision is, that the whole case against all known suspects should be proceeded with expeditiously, and convenience requires, that cognizance against the newly added accused should be taken in the same manner as against the other accused. We, therefore, propose to re-cast S. 351 making it comprehensive and providing that there will be no difference in the mode of taking cognizance if a new person is added as an accused during the proceedings. It is, of course, necessary (as is already provided) that in such a situation the evidence must be reheard in the presence of the newly added accused." 45 The crucial words in the section are, any person not being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring the course of inquiry or trial that any other person than the original accused have also committed the alleged offence along with the original accused, then only, cognizance can be taken under the provisions of Section 319. 48 Let me give a simple illustration. Take a case where the partnership firm being a legal entity is an accused. The trial Court has taken cognizance and issued process against the partnership firm as a legal entity. In the course of the trial, it comes to the notice of the Court that one of the partners not being accused has committed an offence for which he could be tried together with other partners (coaccused), the Court would be justified in invoking Section 319 of the Cr.P.C. [See: Division Bench judgment in Satish Chand Singhal v. State of Gujarat, 2006 Cri. Law Journal 3854] 49 However, when the complaint itself is not maintainable in the absence of the partnership firm being a legal entity before the Court and the cognizance and issue of process against the partners alone is illegal, then there is no question of invoking Section 319 of the Cr.P.C. in such a situation. Section 319 of the Cr.P.C. would not save the situation and is actually no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a substantive amendment. There is no provision in the Code of Criminal Procedure giving right to the parties to file an application for amendment in the pleadings and give power to the lower Courts to allow the same. Had it been an application for substitution of the complainant on death or a technical flaw, the position would be different. What cannot be done directly by the Court, should not be done indirectly. 57 With regard to the aforesaid, I may quote a recent pronouncement of the Supreme Court in the case of S.R. Sukumar v. S. Sunaad Raghuram [(2015) 9 SCC 609]. The observation in paras 17 and 18 is the answer to the question whether it is permissible for the Court to allow any amendment in the complaint: 17. Insofar as merits of the contention regarding allowing of amendment application, it is true that there is no specific provision in the Code to amend either a complaint or a petition filed under the provisions of the Code, but the Courts have held that the petitions seeking such amendment to correct curable infirmities can be allowed even in respect of complaints. In U.P. Pollution Control Board vs. Modi Distillery and ors., (1987) 3 SCC 684, wherein the name of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dure of 'no hearing,' we find that sometimes applications are filed for 'clarification,' 'modification' or 'recall' etc. not because any such clarification, modification is indeed necessary but because the applicant in reality wants a review and also wants a hearing, thus avoiding listing of the same in chambers by way of circulation. Such applications, if they are in substance review applications deserve to be rejected straightway inasmuch as the attempt is obviously to by-pass O. XL, Rule 3 relating to circulation of the application in Chambers for consideration without oral hearing. By describing an application as one for 'clarification' or 'modification,' - though it is really one of review - a party cannot be permitted to circumvent or by-pass the circulation procedure and indirectly obtain a hearing in the open Court. What cannot be done directly cannot be permitted to be done indirectly." 59 The learned counsel appearing for the petitioner placed strong reliance on one decision of the Kerala High Court delivered by Justice K.T. Thomas (as His Lordship then was), in which, His Lordship took the view that by virtue of Section 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Section 138 ;. (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," 4. Section 4(2) of the Code requires that all offences under any law, other than the Indian Penal Code, 1860, shall also be enquired into or tried and otherwise dealt with according to the provisions of the Code, subject to any other enactment which requires a different mode of trial for such offence. The non-obstante clause in Section 142 of the Act is intended to make it clear that the three matters specified in the section have overriding effect on the provisions of the Code. The clause does not keep the provisions of the Code away from trial or inquiry into the offence under Section 138 of the Act as for all other purposes. All that Section 142 restricts is that for taking cognizance of the offence under Section 138 a written complaint (made by either the payee or the holder in due course) within one month of the cause of action envisaged in Clause (c) of the section is the sine qua non, whatever be the provisions in the Code. The contention that the non-obstante clause in Section 142 is intended to sw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Cr.P.C. Such submission was canvassed by the accused to oppose an application filed by the complainant for impleading the firm as an additional accused. The submission was rejected on the ground that Section 142 of the Negotiable Instruments Act itself makes it clear that the prosecution proceedings contemplated therein are either untrammelled or unaided by anything contained in the Code. The learned Judge took the view that the non-obstante clause in Section 142 of the Act is intended to make it clear that the three matters specified in the section have an overriding effect on the provisions of the Code. There cannot be any debate on the proposition of law explained in the decision. The second contention, which was raised, was as regards the prohibition in Section 142 to taking of cognizance of any offence. The submission canvassed was that the Court was debarred from taking cognizance of the offence against the partnership firm after the expiry of the period of one month from the date of cause of action envisaged in clause (c) of Section 138 of the Act, and therefore, the firm could not be impleaded after the said period. Such submission was negatived on the reasoning that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Gujarat & Others (1987) 1 SCC 213 (vide para 18), the Supreme Court observed: The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it. 63 In Bhavnagar University vs. Palitana Sugar Mills Pvt. Ltd (2003) 2 SCC 111 (vide para 59), the Supreme Court observed:- It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. 64 The endeavour on the part of the learned counsel appearing for the petitioner in the present case all through out the course of his submissions was that when a person is impleaded or added as an accused by virtue of Section 319 of the Code, then by a deeming fiction, he is deemed to be an accused from the day one i.e. from the time when the cognizance was taken by the Court of the offence, and therefore, the partnership firm should be deemed to be an accused. The argument before me is that if the partnership firm is deemed to be an accused, then the Court need not go into the question of the legality and validi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a word or phrase that would not otherwise prevail. Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain. Sometimes it is used to give a comprehensive description that includes what is obvious, what is uncertain and what is, in the ordinary sense, impossible." 70 In State of Tamil Nadu v. M/s. Arooran Sugars Ltd., reported in AIR 1997 SC 1815, a Constitution Bench, while dealing with the deeming provision in a statute, opined that the role of a provision in a statute creating legal fiction is well settled. Their Lordships referred to the decisions in East End Dwellings Co. Ltd. v/s. Finsbury Borough Council, 1952 AC 109, Chief Inspector of Mines v/s. Karam Chand Thapar, AIR 1961 SC 838, J.K. Cotton Spinning and Weaving Mills Ltd. v/s. Union of India, AIR 1988 SC 191, M. Venugopal v/s. Divisional Manager, Life Insurance Corporation of India, AIR 1994 SC 1343 and Harish Tandon v/s. Addl. District Magistrate, Allahabad, AIR 1995 SC 676, and came to hold that when a statute creates a legal fiction saying that something shall be deemed to have been done which in fact and truth has not been done, the Court has to examine and ascertain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gnizance of once only and not repeatedly upon discovery of further particulars. In a given case, the complainant may not even know the names and other particulars of the offenders, and it would, therefore, be sufficient for him to lodge a complaint making the persons who are known as the accused. When such a trial proceeds against the known accused, if the evidence led in trial discloses offences committed by other persons who could be tried along with the accused, then there need not be a fresh complaint and fresh order of cognizance against those persons. I reiterate that the complaint was liable to be dismissed on the very first day of its presentation and no process could have been issued against the partners in the absence of the partnership firm. 74 My view is fortified by a decision of the Madras High Court in the case of Suryanarayan v. Anchor Marine Service [1995 (1) Bank Case 466]. A learned Single Judge of the High Court observed in paras 6, 7 and 8 as under: 6. The wording in the section "as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against makes it clear that the company also shall be prosecuted along with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to implead the company. According to the learned senior counsel, Mr. Vanamamalai, the defect in this case, is a serious legal infirmity in the complaint itself, and, therefore, when the complaint itself has the initial defect, the proceedings cannot be allowed to continue against the petitioner. He also draws support from the decision in Delhi Municipality v. Ram Kishan, , wherein the Supreme Court observes that it is manifestly clear that proceedings against an accused in the initial stage can be quashed only if on the basis of the complaint or the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegations in the complaint, as they are, without adding or subtracting anything, if no offence is made out, then the High Court will be justified in quashing the proceedings in exercise of its powers under Section 482 of the present Code. In the above view of the Supreme Court, the maintainability of the proceedings against a particular accused has to be considered without adding or subtracting anything in the complaint. 8. Now it is found that without impleading the company, the present complaint against the petitioner is not s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the managing partner and without impleading the partnership, the partners alone were prosecuted, the complaint is maintainable against the partners alone. Following this decision, the same court in M.O.H. Iqbal v. Uthaman (M) [1995] 82 Comp Cas 726; [1993] MWN 146, also repeated the same view that the complaint against the partners is maintainable without impleading the company under Section 138 of the Negotiable Instruments Act. In Plywood House v. Woodcraft Products Ltd. [1993] MWN 140; [1997] 88 Comp Cas 565 the Kerala High Court has again held that when the managing partner was prosecuted for the offence under Section 138 of the Negotiable Instruments Act without impleading the partnership, the partnership can be impleaded subsequently also as when once the cognizance of the offence was taken by the court, the subsequent impleadment of another person as accused, would not affect the judicial process as it has already commenced by taking cognizance. But these views of the Kerala High Court have not been accepted by this court in a series of decisions and this court has taken a consistent view that a complaint under Section 138 of the Negotiable Instruments Act is not sustainable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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