IMPORTANT POINT
The main legal point established in the judgment is that the notice to the accused under Section 138(b) of the N.I. Act is not mandatory if the company and other directors have been served with statutory notice, and the plea of limitation is not applicable at the stage of impleadment before taking cognizance of the offence.

ORDER :

1. By invoking inherent powers of this Court, the applicant-original accused no.4 who has been subsequently impleaded during the course of enquiry by the trial court, has preferred this application against the order dated 05.03.2022 passed below Ex.13 by which the Additional Judicial Magistrate Court, Ahmedabad (Rural) by exercising his judicial discretion under Section 319 of Cr.P.C., impleaded the applicant herein as accused no.4 in the said Enquiry No.132 of 2017.

2. This Court has heard Mr. P.T. Jasani, learned counsel for the applicant, Mr. C.V Darji, learned counsel for respondent no.1 and Mr. Jay Mehta, learned Additional Public Prosecutor for the respondent-State.

3. Brief facts giving rise to file present application are that, the second respondent/complainant - Sumeru Tradelink Private Limited filed a private complaint under the provisions of Section 138 of Negotiable Instruments Act, 1881, impleading therein the company Umiya Ceramics as accused no.3 and its two directors namely Odhavji Talshibhai Bhoraniya and Ramesh Tapubhai Bhoraniya as accused no.1 and 2. The complaint for return of two cheques, issued by the company accused no.3 filed on 02.08.2014 on the file of Additional Judicial Magistrate Court at Ahmedabad (Rural). The complaint was registered as Criminal Enquiry No.132 of 2017. During the pendency of said enquiry, the second respondent-complainant moved an application Ex.10 to issue summon on the officer of State Bank of India, for production of documents of signature etc. in relation to the company Umiya Ceramics – accused no.3. On 22.12.2021, before the trial court, the authorized person of the bank namely Mr. P.D. Parth, was examined and he had produced the particulars of the accounts of Umiya Ceramics including the particulars of the authorized signatory of the accounts. It has come on record of the trial court that, the cheques were issued by Umiya Ceramics and one Bhoraniya Damjibhai Tapubhai i.e. applicant herein is the authorized signatory of the cheques. Based on this evidence, the complainant vide Ex.13, prayed before the trial court that, the applicant Bhoraniya Damjibhai Tapubhai being a signatory of the cheques, has committed offence and therefore, he may be impleaded as accused in the said enquiry. The learned trial court vide its order dated 21.05.2022, allowed the said application and joined the applicant herein as accused no.4.

4. Being aggrieved with the said order, the applicant has preferred this application, inter alia, stating that the impugned order has been passed by ignoring the mandatory provision of N.I. Act as no notice as contemplated under Section 138(b) of N.I. Act was served upon the applicant and therefore, impleadment of applicant as accused, without serving statutory notice itself is bad in law and there is a delay in filing a petition under Section 319 of Cr.P.C. for impleading the applicant as an accused.

5. Mr. P.T. Jasani, learned counsel appearing for the applicant has submitted that, the complaint for alleged dishonour of cheques filed on 02.08.2014 and criminal enquiry being registered in the year of 2017 and the application Ex.13 impleading the applicant-accused was filed on 05.03.2022. Thus, there is a delay in filing the application and on this count, the application Ex.13 is not sustainable. The second contention raised by learned counsel Mr. Jasani questioning the legality of the orders is that, no demand notice under Section 138(d) was served upon the applicant herein and notice to the company would not suffice for compliance of the mandatory provisions. It is in this context, Mr. Jasani, learned counsel would urge that, the three Judge Bench decision of the Apex Court in the case of Aneeta Hada & Ors. vs. Godfather Travels and Tours Pvt. Limited (2012) 5 SCC 661) has laid down the law that, notice to each director sought to be impleaded is mandatory and pre-condition for the prosecution and therefore, the judgment relied (Satish Chand Singhal vs. The St