Point of Law: When no offence is attributable to the Company, it is not possible to attach liability on the Managing Director by the deeming provisions of Section 141 of the N.I. Act.

JUDGMENT :

Asha Menon, J.

1. This petition has been filed under Section 482 Cr.P.C. by the complainant for setting aside the orders dated 28th August, 2015 and 23rd October, 2017, passed by the learned Trial Court and the learned Appellate Court respectively, dismissing his complaint case.

2. The petitioner had filed a complaint case under Section 138 of Negotiable Instruments Act, 1881 (“N.I. Act”, for short) against the respondent. It was stated in the complaint that the commercial space owned by the petitioner in Punjabi Bagh (West) had been let out upon terms and conditions incorporated in the registered Rent Agreement dated 23rd February, 2010. This was executed between the petitioner (landlord) and the respondent’s company, namely, M/s Accura Care Pharmaceuticals Pvt. Ltd. through its Managing Director i.e., the respondent. In March-April, 2013 the respondent is alleged to have issued five cheques across the company duly signed by him as Managing Director to discharge the company’s liability to pay the rent aggregating to Rs.16,95,000. These bounced. As a result of which, the complaint was filed.

3. Mr. Mahesh K. Mehta, learned counsel for the petitioner submitted that the learned Trial Court dismissed the complaint observing that since the company had not been impleaded as an accused, the liability of the respondent as its Managing Director could not be attached under section 141 of the N.I. Act. Reliance was placed on the judgment of the Supreme Court in Aneeta Hada v. Godfather Travels & Tours (P) Ltd., (2012) 5 SCC 661. According to the learned counsel for the petitioner, this reliance was misplaced and instead of rectifying the error, the learned Appellate Court also concluded that the dismissal of the complaint was proper, as the Trial Court had followed the decision of the Supreme Court which had held that for maintaining the prosecution under Section 141 of the N.I. Act, the Company had to be arrayed mandatorily as an accused. The learned counsel has relied on various judgments, S.R. Sukumar v. S. Sunaad Raghuram, (2015) 9 SCC 609; Rajneesh Aggarwal v. Amit J. Bhalla, (2001) 1 SCC 631; Bilakchand Gyanchand Co. v. A. Chinnaswami, (1999) 5 SCC 693; U.P. Pollution Control Board vs Modi Distillery & Ors, 1988 AIR 1128 and Manish Kalani & Another v. Housing & Urban Development Corporation Ltd. (Hudco) & Another, 2018 MPHC 13, to contend that when the lacuna was only of a technical nature, then the Trial Court ought to have allowed amendment of the complaint, rather than dismissing it. Thus, it was prayed that the impugned order be set aside and the complaint be restored, granting an opportunity to the petitioner to amend his plaint to, ipso M/s Accura Care Pharmaceuticals Pvt. Ltd.

4. The learned counsel further submitted that the judgment in Aneeta Hada (supra) was a per incuriam judgment, as the Supreme Court in other cases had held that mis-description of the company or the non-inclusion of the company in a complaint case was only a curable defect which could be rectified by way of amendment.

5. I have considered the judgments relied upon by the learned counsel for the petitioner and the material on the record.

6. The contention of the learned counsel that Aneeta Hada’s case is per incurium as it has overlooked the decisions of the Supreme Court in U.P. Pollution Control Board (supra), Rajneesh Aggarwal (supra) and Bilakchand Gyanchand Co. (supra) is completely misplaced. Aneeta Hada’s case is an exhaustive judgment. U.P. Pollution Control Board (supra) has been specifically referred to in this case in Para 52. The decisions in Rajneesh Aggarwal and Bilakchand Gyanchand Co. cases were also cited before the Supreme Court and referred to in para 16 of the judgment. Except for making a wild claim that a three judges decision in Aneeta Hada (supra) is per incuriam, the learned counsel has been completely unable to explain how it was so.

7. Before coming to the decision in Aneeta Hada’s case, the other three judgments may be di