IMPORTANT POINT
Dishonour of cheque—Offence by company—Necessary averments ought to be contained in a complaint before a person can be subjected to criminal process.

JUDGMENT

Sanjay Kumar Gupta, J.—Heard.

2. Through the instant petition, petitioner seeks quashment of (i) criminal complaint filed under Section 138 of Negotiable Instrument Act entitled, “Mushtaq Ahmed vs. Yudhveer Singh” pending in the court of learned Additional Special Mobile Magistrate, Doda; (ii) Summoning order dated 05.04.2018 by virtue of which the court of learned Additional Special Mobile Magistrate, Doda has taken cognizance of the case and has issued process against the petitioner; and (iii) Proceedings initiated and pending in the court of learned Additional Special Mobile Magistrate, Doda in case titled, “Mushtaq Ahmed vs. Yudhveer Singh” under Section 138 of the Negotiable Instrument Act.

3. The petitioner claims to be the Managing Director of M/S Care India Pvt. Ltd. (a company limited) with the object to carry on the business to act as advisor, consultant and manages for the placement of individuals in various Private and Government offices, Bodies Corporate, Firms, Public Relation Offices, Establishment, Autonomous Bodies, Agencies, Industrial Houses, Local Authorities, Social and Religious Organizations, Hotels, Restaurants and Business premises, according to their needs and to look after their personnel requirement whether in India or abroad.

4. Learned counsel for the petitioner states that respondent has filed a criminal complaint titled, “Mushtaq Ahmed vs. Yudhveer Singh &ors.” under Section 138 of the Negotiable Instruments Act, 1881 against the petitioner, which is pending before the court of learned Additional Special Mobile Magistrate, Doda wherein the court has taken cognizance and issued process against him. It is further stated that the respondent in order to oppress the petitioner has filed the above said complaint in which he has annexed one cheque bearing No.000041 dated 26.11.2017 of Yes Bank and the cheque in question was not drawn from the account maintained by the petitioner, but by the Care India HR SERVICES PVT. LTD. It is contended that the respondent has not filed the aforesaid complaint against the company, but against the petitioner in individual capacity, as such the petitioner is not liable to be prosecuted under Section 138 Negotiable Instrument Act.

5. Learned counsel for the petitioner further contends that in the cause title of the complaint, petitioners name has been prosecuted for the offence under Section 138 of the Act in his personal capacity, whereas the cheque in question has been returned with the memo of account closed by the company and not by the petitioner. Even assuming that petitioner is Managing Director of the company and he signs the cheque in his capacity, on behalf of the company, therefore, he cannot be mulcted with criminal liability on the basis of a cheque which has been drawn on an account of the company and not on account of the accused. The name of the company has been omitted in the cause title. It is also envisaged in Section 141 that if a company is not prosecuted due to any legal snag or otherwise, the other prosecuted person, on that score alone is not held liable.

6. The petitioner seeks quashment of above said complaint and order dated 05.04.2018 on the following grounds:-

“(i) Because the proceedings impugned in the petition including summonsing order passed by the learned trial court are not tenable in law, in that, the same have been initiated in a routine and mechanical manner without application of mind and even without going through the allegations in the complaint.

(ii) Because the learned trial court gravely erred in taking out proceedings in the legally unsustainable complaint and in doing so the learned trial court has omitted to appreciate the fact that the complaint under Section 138of the Negotiable Instruments Act has been filed against the petitioner in person and not against the company issuing the alleged cheque in question.

(iii) Because the nature of the offence under Section 138 of the Act the first ingredient constituting