A complaint under Section 138 of the Negotiable Instruments Act, 1881, can be amended to include the name of the company as an accused, even if the company was not originally named as an accused in the complaint.

JUDGMENT :

(Shampa Dutt (Paul), J.) :

1. The present appeal has been preferred against the judgment and order dated 27.04.2018 passed by the Learned Additional Chief Judicial Magistrate, Contai, Purba Medinipur, in C.R. Case No. 116 of 2017, thereby finding the respondent nos. 1 and 2 herein not guilty of the charge for commission of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and acquitting them from the instant case.

2. The complainant/appellant’s case is that M/s Maa Manasha Enterprise of which appellant is the proprietor, was appointed as Super Stockiest of Delicious Agro Pvt. Ltd. for the area of East Midnapore on 31.08.2016. The appellant advanced payment in favour of the company of which the private respondents are directors for supply of goods. But no goods were delivered to the appellant. The appellant issued a letter dated 20.02.2016 addressing the private respondents calling for refund of the money advanced. Under such circumstances, to discharge their legal liability, the private respondents in the capacity of Directors of Delicious Agro Pvt. Ltd. issued an Account Payee Cheque in favour of the appellant dated 31.01.2017 bearing No. 735627 drawn on UC Bank, Jodhpur Park Branch for an amount of Rs.10,80,270/-

3. On 03.02.2017, the appellant deposited the said cheque bearing No. 735627 drawn on UC Bank, Jodhpur Park Branch for Rs.10,80,270/- with Canara Bank, Khar Branch in Account No.5822201000038, well within the validity period of the said Chqeue. But the said cheque was dishonoured due to insufficient fund and the said cheque was returned to the appellant by Canara Bank on 03.03.2017 by way of Speed Post along with an attached Returned Memo.

4. That through his learned Advocate the appellant issued a notice by way of Registered Post with Acknowledgment Due under Section 138(b) of the Negotiable Instruments Act dated 15.03.2017 upon the private respondents causing demand for payment of the cheque amount of Rs.10,80,270/- in total in lieu of the dishonoured cheque within 15 days from the date of receipt of the said notice. But the said notices were reverted to the address of the leaned Advocate of the appellant on 29.03.2017 with an endorsement “Unclaimed”.

5. In the light of non-acceptance of the notice dated 15.03.2017 by the appellant, finding no other alternative the appellant approached the Court of the Learned Additional Chief Judicial Magistrate at Contai by filing an application under Section 138 of the Negotiable Instruments Act, 1881 against the private respondents on 19.04.2017 being C.R. Case No. 116 of 2017.

6. On 17.02.2018, the private respondents moved a petition before the Learned Additional Chief Judicial Magistrate, Contai, Purba Medinipur praying for dismissal of the instant case on the ground of maintainability. The Learned Additional Chief Judicial Magistrate, Contai, Purba Medinipur, by his order dated 27.04.2018, after hearing the concerned parties in connection with the petition dated 17.02.2018, directed the instant case to be dropped thereby acquitting the private respondents on the ground of maintainability of the instant case in terms of Section 141 of the Negotiable Instruments Act.

7. Being aggrieved by and dissatisfied with the order dated 27.04.2018 passed by the Learned Additional Chief Judicial Magistrate, Contai, Purba Medinipur, in C.R. Case No. 116 of 2017, the appellant preferred Special Leave to Appeal before this Hon’ble Court being C.R.M.S.P.L. No. 60 of 2018 and His Lordship the Hon’ble Justice Shivakant Prasad on 20.08.2018 was pleased to grant leave to the appellant to prefer the present appeal.

8. Mr. Srinjay Sengupta, learned counsel for the appellant has submitted that the Learned Magistrate while passing the impugned order erred in law by being oblivious to the fact that the petition dated 17.02.2018 moved by the private respondents was per se not maintainable ab initio. Thus, by dwelling on the same and passing the impugned order instead