IMPORTANT POINT
An incorporeal body can neither give evidence nor sign deposition.

Ajit Bharihoke, J.—B.K. Sharma, the petitioner herein vide this petition under Section 482 Cr.P.C. is seeking quashing of complaint No. 27/01 of 2009 titled “Rajesh Kapoor, Director of M/s Multitech Instruments Co. Pvt. Ltd. v. B.K. Sharma, Director/authorised signatory of M/s Metito Franchise” under Section 138 N.I. Act pending in the Court of Metropolitan Magistrate (East), Karkardooma Courts Complex, Delhi.

2. Briefly stated, facts relevant for the disposal of this petition are that respondent No.2 Rajesh Kapoor is the Director of M/s Multitech Instruments Co. Pvt. Ltd. Petitioner B.K. Sharma is claimed to be Director/authorised representative of the M/s Metito Franchise.

3. Rajesh Kapoor, respondent No.2, in his capacity as Director of Mis Multitech Instruments Co. Pvt. Ltd. filed the impugned complaint under Section 138 N.I. Act claiming that his company had business dealings with M/s Metito Franchise. In furtherance of the order placed by the petitioner, some lab equipment was supplied by M/s Multitech Instruments Co. Pvt. Ltd. at Jain Agro Industries, Plot No.39, DSIDC Manipur, Gujarat, Dahanu Road, District Thane. The representative of the petitioner received the supplies on 07.11.2008 without any complaint about the quality or the quantity of the goods. The petitioner, towards part payment of the bill amount, issued a cheque worth Rs. 2,12,000/- in favour of M/s. Multitech Instruments Co. Pvt. Ltd. The cheque, on presentation through the bankers of respondent No.2, was received back unpaid vide memo dated 20.11.2008 with the remarks “insufficient funds”. Thus, a demand notice under Section 138 Negotiable Instruments Act dated 17.12.2008 was sent to the petitioner. Despite of service of demand notice, the petitioner failed to pay the cheque amount. This led to filing of the complaint.

4. The petitioner is seeking quashing of the complaint under Section 138 N.I. Act on legal as well factual issues. It is submitted on behalf of the petitioner that the complaint under Section 138 N.I. Act filed by respondent No.2 is not maintainable as it has been filed by the respondent No.2 Rajesh Kapoor in his personal capacity and not in the name of M/s Multitech Instruments Co. Pvt. Ltd in whose favour the cheque in question was issued. Learned counsel further submitted that even the notice of demand issued under Section 138 N.I. Act is also not in accordance-with the scheme of Section 138 N.I. Act as the notice was issued in the name of respondent no.2 and not in the name of the payee company. In support of this contention, learned counsel for the petitioner has relied upon the judgment of Supreme Court in the matter of National Small Industries Corporation Ltd. v. State (NCT) and Ors.1 and the judgment of the Madras High Court in the matter of Nandagopal Vs. NEPC Agro Foods Ltd.2

5. I have considered the submissions made on behalf of the petitioner and perused the record as well as the judgments relied upon by the petitioner.

6. In the matter of National Small Industries Corporation Limited v. State, the National Small Industries Corporation Limited, a Govt. company within the meaning of Section 617 Companies Act 1956 filed a complaint under Section 138 N.I. Act against the respondent company alleging that the respondent company had issued a cheque drawn in favour of NSIC Ltd. towards discharge of its liability. The cheque was dishonoured when presented for payment and that the respondent company failed to pay the cheque amount despite of service of demand notice. Learned Magistrate, on 4th February, 2010, took cognizance of the complaint and summoned the accused. He did not examine the complainant and its witnesses under Section 200 of the Code of Criminal Procedure for the reason that the complaint had been filed by a public servant in discharge of his public duties. The respondents in that case filed a petition under Section 482 Cr.P.C. challenging the summoning order, contending that the complainant in that case was a