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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 ..... is not maintainable. Revision allowed. - The Hon ble Justice Shampa Dutt ( Paul ) For the Petitioner : Mr. Debojyoti Deb, Mr. Avishek Roy Chowdhury, Ms. Somdyuti Parekh For the State : Ms. Rita Datta JUDGMENT Shampa Dutt (Paul), J. 1. The present revision has been preferred praying for quashing of proceedings in connection with complaint case No. C/752 of 2019 (corresponding to T.R. No. 169/2019) under Section 138 of the Negotiable Instruments Act, 1881, currently pending before the Court of the learned Judicial Magistrate, 5th Court at Alipore, South 24 Parganas. 2. The petitioner is one of the Directors of M/s. Ashika Infra Projects Private Limited, a registered private limited company. 3. In course ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not pay the opposite party/complainant. 6. The petitioner states that the allegations in the complaint are totally false and were leveled simply to extract money from the petitioner. The petitioner is one of the Directors of the company and business decisions are taken by the company and not the petitioner unilaterally. A decision to hand over a security cheque, to the complainant was issued on the advice of the company and the petitioner had no individual interest in the same. The petitioner had signed as a mere signatory without any special interest in the affairs of the company which was not made a party to the proceedings. 7. That although the cheque was issued by the petitioner on behalf of the company namely M/s. Ashika Infra Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... party. 9. The petitioner states that the Hon'ble Supreme Court of India in Himanshu-versus-B. Shivamurthy Another, (2019) 3 SCC 797, on January 17, 2019, has laid down that:- In the absence of the company being arraigned as an accused, a complaint against the appellant was therefore not maintainable. The appellant had signed the cheque as a Director of 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. 10. It is further stated that the Hon'ble Apex Court similarly in Aneeta Hada-versus-Godfather Travels And ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Debojyoti Deb, learned counsel for the petitioner has submitted that 'Notice' under Section 138 of the Act of 1881 was never issued to the company. 14. The company was not made a party to the proceedings under Section 138/141 of the Act of 1881 which itself makes the proceedings non-maintainable. 15. It is further submitted that it would clearly transpire from the contents of the cheque, as well as the complaint that the opposite party/complainant was in a business relationship with the company namely M/s. Ashika Infra Projects Private Limited and the petitioner was one of its Director. 16. It is also stated that the continuance of the instant proceedings would be serious misuse and abuse of the process of law and hence, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laint was lodged only against the appellant without arraigning the company as an accused. 12. The provisions of Section 141 postulate that if the person committing an offence under Section 138 is a company, every person, who at the time when the offence was committed was in charge of or was responsible to the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished. 13. In the absence of the company being arraigned as an accused, a complaint against the appellant was therefore not maintainable. The appellant had signed the cheque as a Director of the company and for and on its behalf. Moreover, in the absence ..... X X X X Extracts X X X X X X X X Extracts X X X X
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