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TMI Blog2024 (5) TMI 1442X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Brief facts giving rise to file present application are that, the second respondent/complainant - Sumeru Tradelink Private Limited filed a private complaint under the provisions of Section 138 of Negotiable Instruments Act, 1881, impleading therein the company Umiya Ceramics as accused no.3 and its two directors namely Odhavji Talshibhai Bhoraniya and Ramesh Tapubhai Bhoraniya as accused no.1 and 2. The complaint for return of two cheques, issued by the company accused no.3 filed on 02.08.2014 on the file of Additional Judicial Magistrate Court at Ahmedabad (Rural). The complaint was registered as Criminal Enquiry No.132 of 2017. During the pendency of said enquiry, the second respondent-complainant moved an application Ex.10 to issue summon on the officer of State Bank of India, for production of documents of signature etc. in relation to the company Umiya Ceramics - accused no.3. On 22.12.2021, before the trial court, the authorized person of the bank namely Mr. P.D. Parth, was examined and he had produced the particulars of the accounts of Umiya Ceramics including the particulars of the authorized signatory of the accounts. It has come on record of the trial court that, the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he application under Section 319 of Cr.P.C. by which the applicant sought to be impleaded, is filed after expiry of statutory period as provided under the Act and that too, without serving a statutory notice as contemplated under Section 138(b) of the Act and same has not been properly considered by the court while allowing the application filed under Section 319 of Cr.P.C. by which court has committed an error of law which has resulted into miscarriage of justice as prosecution without serving notice is bad in law. Thus, he would urge that, the order impugned is not sustainable in law and same deserves to be quashed by exercising inherent powers of this Court. 7. Mr. C.V. Darji, learned counsel for the complainant has submitted that, after filing the complaint, instead of issuing summons to the accused, the trial court registered the case as Criminal Enquiry No.132 of 2017 and therefore, before taking cognizance for the offence under Section 138 of the N.I. Act, the court having all the powers to join the accused who has committed the offence and in the facts of present case, the applicant is the authorized signatory of the cheques and at relevant time, the complainant was not ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndisputed background of facts, the contention as raised required to be examined. The first contention is that, notice to the applicant is mandatory and same has been held by three Judge Bench of Supreme Court in case of Aneeta Hada (supra). In the case of Aneeta Hada, the issue before the Supreme Court was that whether an authorized signatory of a company would be liable for prosecution under Section 138 without the company being arraigned as accused. The Supreme Court after examining the statutory provisions and various ruling on these aspects, held that, if a person who commits offence under Section 138 is a company, the company as well as every person in charge of and responsible for the company at the time of commission of the offence, is deemed to be guilty of the offence and applying the doctrine of strict condition, it was held that, for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. In the said judgment, it has nowhere observed and held that, in order to maintain the prosecution against the directors, the individual notices under Section 138 would be mandatory and necessary. Thus, the contention as raised that, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view, Section 138 of the Act does not admit of any necessity or scope for reading into it the requirement that the directors of the Company in question must also be issued individual notices under Section 138 of the Act. Such directors who are in charge of affairs of the Company and responsible for the affairs of the Company would be aware of the receipt of notice by the Company under Section 138. Therefore neither on literal construction nor on the touch stone of purposive construction such requirement could or ought to be read into Section 138 of the Act. Consequently this appeal must succeed. The order passed by the High Court is set aside. Since the matter was at the stage of considering application for leave to appeal and the merits of the matter were not considered by the High Court, we remit the matter to the High Court for fresh consideration which may be decided as early as possible. Concluding so, we must record that the decision of the Division Bench of the Madras High Court in B. Raman & Ors. Vs. M/s. Shasun Chemicals and Drugs Ltd. (supra) was incorrect and it stands overruled. The appeal is allowed in these terms." 10. It is not in dispute that the applicant was in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion for seeking impleadment of the company as an accused after expiry of statutory period as contemplated under Section 142(1)(b) of N.I. Act and therefore, the Apex Court on factual aspects, held that, the application invoking section 319 of Cr.P.C. is only device by which the respondent-complaint seeks to initiate prosecution against the DAKSHIN beyond the period of limitation stipulated under the Act. In the facts of present case, at the time of passing the order under Section 319, the trial court has not taken cognizance of the offence and at the enquiry stage, the application was entertained. Thus, before taking cognizance in terms of Section 142 of the N.I. Act, the trial court could implead the accused under Section 319 of Cr.P.C. and plea of limitation at that stage was not require to be considered nor it is applicable. In such circumstances, the cited case on the factual aspects as well as on law would not be much helpful to the applicant. 13. For the foregoing reasons, this Court is of considered opinion that, the order passed by the trial court cannot be termed as unsustainable or abuse to the process of law which do not warrant any interference as no ground is made ou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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