9911796707
TMI Blog2020 (9) TMI 106X X X X Extracts X X X X X X X X Extracts X X X X ..... A MR SV RAJU SENIOR COUNSEL for MR.HARDIK B SHAH(3751) FOR THE APPLICANT MR PRANAV TRIVEDI APP (2) FOR THE RESPONDENT ORDER 1. By way of present two petitions filed by the petitioner - original complainant under Article 226 and 227 of Constitution of India read with Section 482 of Criminal Procedure Code the petitioner- original complainant has made following prayer in Special Criminal Application No. 764 of 2020 and Special Criminal Application No. 769 of 2020 respectively:- "9(b) To issue an appropriate writ, order or direction permitting the petitioner to amend the Criminal Case No. 7674 of 2015 pending before the Ld. Addl. Chief Judicial Magistrate, CBI Court No.1, Ahmedabad (Rural) and to permit the petitioner to add the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egotiable Instruments Act read with Section 319 of Criminal Procedure Code. 4. At the outset it requires to be kept in mind that the petitioner complainant has not impleaded / joined the company i.e. M/s. B.M. Infrastructure Industries Pvt. Ltd. as an accused in the proceeding initiated under Section 138 of Negotiable Instruments Act. 5. Secondly, it is also relevant and important to note here that the accused No.2 Swarn Mukeshbhai Gupta has preferred Criminal Misc. Application No. 29748 of 2016 with Criminal Misc. Application No. 29751 of 2016 for quashing and setting aside the Criminal Case No. 7647 of 2015 and Criminal Case No. 7675 of 2015 pending in the Court of the learned Chief Judicial Magistrate, Ahmedabad arising from the compla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in matter of present petitioner complainant itself. 7. Despite such position, learned Senior Counsel Mr. S.V. Raju, for the petitioner urged before the Court to look into certain decisions rendered by Hon'ble Supreme Court and other High Courts on the subject matter of present petitions in order to convince this Court that such amendment of the complaint and impleadment of company as accused in the proceedings under Section 138 of Negotiable Instruments Act is permissible. He drew the attention of this Court in case of decisions rendered in (i) Arjundev Nagpal vs. State M.P. State Industrial Development Corporation reported in 2012 LawSuit (MP) 2327 (ii) S.R. Sukumar vs. S. Sunaad Raghuram reported in (2015) 9 Supreme Court Cases 609 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h can be cured by means of proposed amendment and therefore the said case would not apply to the facts of present case. 7(iii) Third decision cited by the learned Senior Counsel for the petitioner is in the matter of Rajneesh Aggarwal (supra). In the said case Hon'ble Apex Court has concerned with object and purpose of notice under Section 138 of N.I. Act and has further examined whether in a petition filed by the respondent under Section 482 of Criminal Procedure Code, the High Court quashed the complaint on the ground that notice had been issued to the respondent in its individual capacity and not to the director of company. Thus, the Hon'ble Apex Court while considering the question whether the High Court was justified in coming ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of director would be construed to be the notice to the company itself for the purpose of Section 138 (b) of the Act. After examining various decisions on the subject matter, the Hon'ble Apex Court dismissed the petition challenging the proceedings on premise that notice issued under Section 138 of N.I. Act was defective in law. No such issue is involved in the matter. 7(vi) Lastly, learned Senior Counsel relied on the decision of Sarabjit Singh (supra) wherein Hon'ble Apex Court maintained the order of Metropolitan Magistrate summoning of the company accused additionally under Section 319 of Criminal Procedure Code. In the said case the company was accused but it was not summoned and therefore pending proceeding and with referenc ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
