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TMI Blog2024 (5) TMI 1321X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fences committed by the Petitioner punishable under Section 138 of the Negotiable Instruments Act, being Complaint Case No. 54C of 2017. 4. It is submitted by the petitioner that the cheque was issued in the name of the Company, named and styled as Amrit Feeds Limited, but the said Company has till date not been impleaded as an Accused. 5. It has been categorically alleged by the said Opposite Party that the said cheque was in discharge of a purported legally enforceable debt of the said Company, yet said Company has not been made an accused in the instant case, which is absolutely essential for a case under the Negotiable Instruments Act. 6. It is further submitted that the Learned Judicial Magistrate, 3rd Court Malda on receipt of the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplainant and the witnesses, the latter Magistrate need not re- examine them. 10. Section 202 of Cr.P.C., lays down:- 202. Postponement of issue of process. (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction,] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of process. Section 145 of the Act provides that the evidence of the complainant may be given by him on affidavit, which shall be read in evidence in any inquiry, trial or other proceeding, notwithstanding anything contained in the Code. Section 145 (2) of the Act enables the court to summon and examine any person giving evidence on affidavit as to the facts contained therein, on an application of the prosecution or the accused. It is contended by the learned Amici Curiae that though there is no specific provision permitting the examination of witnesses on affidavit, Section 145 permits the complainant to be examined by way of an affidavit for the purpose of inquiry under Section 202. He suggested that Section 202 (2) should be read alon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Complainant/Opposite party has stated that he has filed the present complaint against the accused person as proprietor. 15. The cause title in the petition of complaint is as follows:- Harish Bagla, Managing Director of Amrit Feeds Limited. 16. In Paragraph 3 it is stated:- That the accused person approached the complainant to supply Soya sales for his company on credit basis. 17. Document annexed to the supplementary affidavit filed by the petitioner shows that the complainant served Notice dated 30.11.2016 under Section 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 perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case is very similar to the case, in Himanshu vs. B. Shivamurthy Anr. (Supra). 21. 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. 22. 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. (Supra). 23. CRR 50 of 2022 is allowed. 24. The proceedings in connection with Complaint Case No. 54C/2017 under Section 138 of the Negotiable Instruments Act, pending before the Court of the Learned Judicial Magistrate, 3rd Court, Malda and all ..... X X X X Extracts X X X X X X X X Extracts X X X X
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