Maintaining the prosecution under Sec. 141 of N.I. Act requires the company to be arraigned as the accused.

JUDGMENT :

Shivashankar Amarannavar, J.

1. Seeking quashing of the entire proceedings in C.C. No. 606/2016 on the file of Civil Judge and JMFC, Hukkeri registered or the offence punishable under Sec. 138 of Negotiable Instruments Act (for brevity 'N.I. Act').

2. The brief facts of the case are that the respondent-complainant filed a private complaint in P.C. No. 800/2014 on the file of Civil Judge and JMFC, Hukkeri against the petitioners for the offence punishable under Sec. 138 of N.I. Act. In the said complaint, it is stated that the respondent-Shri. Adinath Multipurpose Souharda Sahakari Limited had opened fixed deposit Accounts with the Belagavi Liberal Credit Souharda Cooperative Limited, Belagavi (for short 'the society') on 15/2/2012 for a period of one year for a sum of Rs.5.00 lakhs each i.e., total of Rs.10.00 lakhs. Upon maturity of the said fixed deposit the said society was liable to the pay to the respondent-complainant matured amount of Rs.17,10,000.00.

3. Petitioner No. 1 on behalf of said society issued a cheque bearing No. 030124 for a sum of Rs.15.00 lakhs dtd. 12/12/2013 towards payment of maturity amount. Upon presentation of the said cheque by the respondent-complainant with its banker, the same was dishonoured with an endorsement stating "Insufficient Funds."

4. Though notice is served upon the petitioners, the petitioners have failed to pay the amount under the cheque and the respondent was constrained to file the complaint. Upon receipt of sworn statement by the respondent/complainant by way of affidavit, the trial court was pleased to take cognizance of the alleged offence punishable under Sec. 138 of the N.I. Act and directed for registration of a criminal case. Accordingly, the private complaint in P.C. No. 800/2014 was renumbered as C.C. No. 606/2016.

5. Heard the arguments of Learned counsel for the petitioners and learned counsel for the respondent.

6. Learned counsel for the petitioners contended that the cheque has been issued on the account of Belagavi Liberal Credit Souharda Cooperative Limited, Belagavi and it is signed by the petitioners as authorized signatory and the petitioners at the relevant point of time, were employees of the said society. Learned counsel further contended that as per provisions of Sec. 141 of N.I. Act, 1881 if the person committed offence under Sec. 138 is a company, every person who, at the time the offence was committed, was in charge of, and 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 hence, in the instant case, the society (company) has not been served with the demand notice and not been made as party for the proceedings. On that point, he placed reliance on the Hon'ble Supreme Court in the case of Aneeta Hada vs. Godfather Travels and Tours Private Limited, (2012) 5 SCC 661.

7. It is further contended that since society has not been arrayed as accused in the proceedings, solely on account of petitioners were the employees of the cooperative society is not maintainable and is liable to be quashed. He also placed reliance on the decision of Hon'ble Apex Court in the case of Himanshu vs. B. Shivamurthy and Another, (2019) 3 SCC 797.

8. Per contra, learned counsel for respondent has contended that the petitioners were in charge of the business of the cooperative society and therefore, they are guilty of offence as they have issued the cheque in favour of the respondent/complainant. He further contended that the respondent be given liberty to amend the complaint to implead the cooperative society as accused. He further contended that seeking the amendment of the complaint is permissible. On that point he placed reliance on the following decisions:

1. U.P. Pollution Control Board vs. Modi Distillery and Others, AIR 1988 SC 1128

2. Manish Kalani and Others vs. Housing and Urban Development Corporation Ltd. and Others, decided on 30.1.2018 by Madhya Pradesh High Court

3. Ush