IMPORTANT POINT
Dishonour of cheque – Offence by company – In absence of company being arraigned as accused, complaint against accused is non-maintainable.

JUDGMENT (ORAL)

This appeal is filed by the appellant challenging the judgment and order passed by the learned 3rd Additional Chief Judicial Magistrate, Nadiad dated 19.06.2023 in Criminal Case No.2636 of 2015 acquitting the respondent Nos.2 and 3 from the offence punishable under Section 138 of the Negotiable Instruments Act, 1886 (‘the N.I.Act’ referred hereinafter).

2. The facts of the case are mentioned hereinbelow:

2.1. Present appellant is the original complainant, who has filed the private complaint before the competent court alleging that he is the power of attorney of Ketanbhai Natwarbhai, who had done the financial transactions with one Vinodbhai Patel. The said Ketanbhai had lent the amount of Rs.1.20 Crore cash in the month of March 2014 as a hand loan to the respondents accused. To repay the amount on repeated request, two cheques bearing cheque Nos.612234 and 627728 of ICICI Bank, Petlad Branch, Nadiad was issued for the amount of Rs.60 Lakh each. On depositing the said cheque with the Bank, the same was returned with an endorsement of ‘account closed’. Therefore, after following the procedure prescribed under the act private complaint came to be filed.

2.2. On recording the verification under Section 200 of the Code of Criminal Procedure, 1973 (‘the Cr.P.C. referred hereinafter) to the respondentsaccused under Section 204 of the Cr.P.C.

2.3. On being appeared the plea came to be recorded below Exhibits 7 & 8 of the respondentsaccused wherein they had pleaded innocent and claimed to be tried.

2.4. To bring the guilt to the home, the complainant had examined himself below Exhibit 30 and another witness Vinubhai Patel below Exhibit 69, who was one of the friend of the complainant and from him, some of the amount was borrowed by the complainant. In addition of the above, examination of witness with various documentary evidence was produced before the learned trial Court, which was in the nature of original cheque, power of attorney, notice and the undertaking which was executed by the complainant in favour of one Nitinbhai Patel and Vinubhai CHotabhai Patel.

2.5. On filing the closing pursis below Exhibit 71, the case was posted for recording of the further statement of the accused however, as the accused did not appear though the warrant was issued, the stage of the further statement was close. Thereafter, considering the evidence placed on record by both the parties, learned trial Court passed the judgment and order of acquittal, which is impugned before this Court.

3. Heard the learned advocate Mr.A.N. Pathan for the appellant and learned advocate Mr. A.A. Zabuawala for the respondents accused.

3.1. Learned advocate Mr.A.N.Pathan submits that the judgment and order of the acquittal was passed by the learned trial Court mainly on the ground that company was not joined as a party as per the requirement under Section 141 of the N.I.Act. Learned advocate Mr. A.N. Pathan submits that there was no transaction with the company. The money was lent to the Respondents accused on their personal capacity, however, cheque was issued by the respondents accused wherein the signature was made by the respondent No.2 accused Rajanbhai Desai as the authorized signatory of the ACE Infrastructure Private Limited Company.

3.2. Learned advocate Mr. A.N. Pathan submits that as the amount was lent to the respondent Nos.2 and 3 therefore, there was no any requirement to join the company as the respondent accused and there would not be any vicarious liability arise with regard to the respondent Nos.2 and 3, who are the authorized signatories of the company. Learned advocate Mr.A.N.Pathan submits that the cause title reflects that accused Nos.1 and 2 were joined as authorized signatory of the ACE Infrastructure Private Limited therefore, requirement under Section 141 was already satisfied however, without considering the same the judgment and order of acquittal was passed by the learned trial Court.

3.3. Learned advocate Mr.A.N.Pathan submi