The non-impleadment of a company in a cheque dishonor case renders the proceedings against its director unsustainable under the Negotiable Instruments Act.

JUDGMENT :

Bibhas Ranjan De, J.

1. This is an application under Section 528 read with Section 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (herein after referred to as BNSS ) wherein the petitioner has prayed for quashing of the proceeding being C.R. Case No. 364 of 2023 presently pending before the Court of Ld. Judicial Magistrate, 2^nd Court, Jalpaiguri.

Brief Backdrop:-

2. The petitioner being one of the Directors of a private limited company namely Solution Dinen Hospitality Services Private Limited had a business relation with the opposite party no. 2/company and in course of such business transaction the petitioner had issued a cheque dated 20.11.2022 in favour of the opposite party no. 2 amounting to Rs. 2,37,381/- but the said cheque was dishonored by the banker of the petitioner i.e. Union Bank of India, S.F. Road Branch, Siliguri with the comment ‘Payment stopped by drawer’. Upon receipt of information about the said dishonor of cheque, opposite party no. 2 served a demand notice within the statutory period upon the petitioner through his engaged advocate under registered post with A/D as well as through e-mail address and through the said notice the opposite party no. 2 demanded payment of the due amount within 15 days from receipt of the said notice but the petitioner did not repay the due amount within the stipulated period and as a sequel on 05.06.2023 the opposite party no. 2 instituted a complaint being C.R. Case No. 364 of 2023 under Section 138 of the Negotiable Instrument Act (hereinafter referred to as N.I. Act) before the Court of Ld. Chief Judicial Magistrate, Jalpaiguri wherein the Ld. Chief Judicial Magistrate was pleased to take cognizance and transfer the same to the Court of Ld. Judicial Magistrate, 2^nd Court, Jalpaiguri for disposal. On 06.01.2025 the petitioner herein had filed a written objection against the application preferred under Section 138 of the N.I. Act in connection with C.R. Case No. 364 of 2023 with the prayer for dismissal of the same but the Ld. Trial Judge disallowed the prayer of the petitioner. Being aggrieved, the petitioner has moved this Court with a prayer for exercise of inherent jurisdiction to quash the impugned proceeding.

At the Bar:-

3. Ld. Counsel, Mr. Ronit Kr. Jha, appearing on behalf of the petitioner has mainly canvassed a dual pronged argument and at the very outset has submitted that the present proceeding had been initiated without serving the statutory demand notice to the company in compliance with the mandatory provision envisaged under Section 138 of the N.I. Act and therefore no cause of action for institution of a criminal complaint arose as the proviso (c) of Section 138 speaks of receipt of notice by the drawer and his subsequent failure to make payment within 15 days of such receipt would only generate the cause of action. Alternatively, Mr. Jha has vociferously contended that the present proceeding has no legs to stand on its own as it has been initiated against the petitioner, who is a director of the company without impleading the company itself as a party in violation of the provision laid down under section 141 of the N.I. Act.

4. In support of his submission Mr. Jha has relied on the ratio of the following cases:-

Bijoy Kumar Moni vs. Paresh Manna & Anr., 2024 INSC 1024

Himanshu vs. Shivamurthy & Anr., 2019 INSC 53 

Aneeta Hada vs. M/S Godfather Travels & Tours Pvt. Ltd., (2012) 5 SCC 661

Subhash Kedia vs. The State of West Bengal & Anr. , 2024: CHC-AS :1924

5. Ld. Counsel, Mr. Aniruddha Biswas, appearing on behalf of the opposite party /company has strongly refuted al