For personal liability under Section 138 of the NI Act, the company must be impleaded as a primary accused; non-impleadment is curable and amendments should be permitted if they do not alter the complaint's nature.

JUDGMENT :

Amit Mahajan, J.

1. The present petition has been filed seeking quashing of Complaint Case No. 2542/2019 pending before the learned Metropolitan Magistrate ('MM'), South District, Saket Courts, New Delhi, for offence under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881 ('NI Act').

2. Briefly stated, the facts of the case are that the petitioner is a partner in the partnership firm namely– A & A Enterprises that entered into a Franchisee Agreement dated 28.12.2012 with the respondent company namely– TCNS Clothing Co. Ltd. (hereafter ‘complainant'), who is in the business of sale of women's apparel and accessories under the brand name “W”, “Aurelia” and “Wishful”. In pursuance of the Franchisee Agreement dated 28.12.2012, A & A Enterprises was appointed as a retailer / retail operator of the products of the respondent company and was to establish and operate a retail outlet at Store No. 111, Moments Mall, Patel Road, New Delhi. It is alleged that various products were delivered to the petitioner through invoices in which Customer Code No. 119101 has been mentioned and the same have been received by the petitioner. It is alleged that a total sum of about Rs. 38,11,873/- is due on part of the petitioner. It is alleged that in discharge of its liability the petitioner issued two cheques, one bearing No. 000565 dated 27.09.2018 for a sum of Rs. 10,00,000/- and one being cheque No. 000566 dated 30.09.2018 for a sum of Rs. 7,50,000/- both drawn on HDFC Bank, G-14, Kirti Nagar Extension, New Delhi– 110015, in favour of the complainant.

3. It is alleged that the said cheques were dishonoured vide return memo dated 21.12.2018 for reasons “Funds Insufficient”. Following the dishonour of the cheques, the complainant sent a legal notice dated 14.01.2019, calling upon the petitioner to make payment towards the dishonoured cheques within 15 days.

4. On the failure of the petitioner to make the payment, the complainant filed the complaint under Section 138 of the NI Act against the petitioner, alleging that the petitioner, being the sole proprietor of A & A Enterprises, had failed to discharge his financial obligation in accordance with the terms of the Franchisee Agreement dated 28.12.2018. In the memo of parties of the complaint, the name of the signatory Rishi Kalia appears to have been added with a pen.

5. By order dated 05.03.2019, the learned MM issued summons upon the petitioner. On 09.08.2019, the learned MM issued Bailable Warrants against the petition, which were received back unexecuted, whereafter the complainant was directed to verify the address of the petitioner. By orders dated 03.03.2020, 26.02.2021, 06.10.2021, 07.12.2021 and 10.03.2022 the learned MM granted last and final opportunity to the complainant to take steps in terms of the direction to verify the address of the petitioner following which an affidavit was filed by the complainant furnishing the fresh address of the petitioner. By order dated 03.06.2022, Non Bailable Warrant got issued against the petitioner, which was stayed by order dated 25.08.2022, on an application filed by the petitioner seeking cancellation of Non Bailable Warrant.

6. In the meantime, the petitioner approached this Court, challenging his impleadment in the complaint in his personal capacity as a sole proprietor, rather than as a partner of A & A