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TMI Blog2023 (9) TMI 1361X X X X Extracts X X X X X X X X Extracts X X X X ..... one of the Directors of M/s. Ashika Infra Projects Private Limited, a registered private limited company. 3. In course of business dealings, the opposite party had approached the petitioner's company M/s. Ashika Infra Projects Private Limited for some business ventures and the company had decided to enter into some dealings with the opposite party. Accordingly, the opposite party had made some investments with the company although, as in business dealings, there was no guarantee of any specified profits. 4. In course of such business dealings, an undated account payee cheque was issued by the petitioner on behalf of the company. The cheque in issue, naturally, contained the stamp and seal of the company. Since the company had no imme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 7. That although the cheque was issued by the petitioner on behalf of the company namely M/s. Ashika Infra Projects Private Limited, 'demand notice' under the provisions of Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as the said Act) was not issued to the Company. The petitioner was stunned and taken aback to receive copy of the complaint (without annexure) from which it transpired that the proceeding under the Act of 1881 was initiated only against the petitioner and the company was left out. It is relevant to mention that the cheque in question was issued by the petitioner signing as the Director of the company. 8. The petitioner states that the demand notice dated 27.12.2018 issued by the opposite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further stated that the Hon'ble Apex Court similarly in Aneeta Hada-versus-Godfather Travels And Tours Private Limited, (2012) 5 SCC 661, has laid down that "in view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the drag-net on the touchstone of vicarious liability as the same has been stipulated in the provision itself." 11. In the instant case, notice under the provisions of Section 138 of the Act of 1881 was never sent to the company. Accordingly, proceedings were also never initiated against the company M/s. Ashika Infra Projects Priva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instant proceedings would be serious misuse and abuse of the process of law and hence, the same is liable to be quashed for the ends of justice. 17. As service could not be effected upon the opposite party/complainant the State was directed to do the same through the local Police Station. 18. Ms. Rita Datta, learned counsel for the State has placed the report. As per the report, it appears that the opposite party/complainant left the address on record about 7-8 years ago and his present whereabouts are not known. 19. On perusal of the materials on record, it appears from the petition of complaint that in paragraph 3 it has been stated as follows:- "That the accused person is a Director of M/s. Ashika Infra Projects Pvt. Ltd. and has o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the company and for and on its behalf. Moreover, in the absence of a notice of demand being served on the company and without compliance with the proviso to Section 138, the High Court was in error in holding that the company could now be arraigned as an accused." 22. The facts in the present case is very similar to the case, in Himanshu vs. B. Shivamurthy & Anr. (Supra). 23. In the present case:- a) The company has not been made an accused nor was any notice served upon the company. b) The petitioner has been made an accused as the Director of the company, who signed and issued the cheque for and on behalf of the company. 24. Therefore, in the absence of the company being arraigned as an accused, a complaint against the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X
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