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2019 Supreme(All) 478
HIGH COURT OF JUDICATURE AT ALLAHABAD BENCH AT LUCKNOW
MOHD FAIZ ALAM KHAN, J.
Nitin Bhatia - Appellant
Versus
State of U.P. and Others - Respondent
Miscellaneous Single No. 10686 of 2019
Decided On : 16-04-2019
Piyush Chandra Agarwal, Adv., Abhishek Singh, Adv., Pankaj Kumar, Adv.
The omission to implead the company as an accused in a complaint under Section 138 of the Negotiable Instrument Act is an irregularity that can be corrected subsequently if all material particulars for implicating the company as an accused are available in the complaint.
Headnote:
Necessary Party - Summoning Order - Section 138 of Negotiable Instruments Act - [Section 138 of Negotiable Instrument Act] - The court discussed the necessity of impleading a company as a party in a complaint filed under Section 138 of the Negotiable Instrument Act. It highlighted the legal provisions and interpretations related to the impleadment of the company and concluded that the omission to implead the company as an accused is an irregularity that can be corrected subsequently if all material particulars for implicating the company as an accused are available in the complaint.
Fact of the Case:
The petitioner sought to set aside the summoning order and judgment passed by the lower courts, arguing that the complaint under Section 138 of the Negotiable Instrument Act was not maintainable as the company on whose behalf the cheque was issued was not made a party.
Finding of the Court:
The court found that the omission to implead the company as an accused was an irregularity that could be corrected subsequently, as all material particulars for implicating the company as an accused were available in the complaint.
Issues: The main issue was whether the complaint under Section 138 of the Negotiable Instrument Act was maintainable without impleading the company as a party.
Ratio Decidendi: The court held that the complaint would not be illegal if the company on whose behalf the cheque was issued was not impleaded, as long as there were specific allegations against the company in the complaint.
Final Decision: The petition was dismissed as the court found no force in the petitioner's arguments.
MOHD. FAIZ ALAM KHAN, J.
1. Heard learned counsel for the petitioner and Shri S.N. Tilhari, learned A.G.A. for the State.
2. The present petition under Article 227 of the Constitution of India has been filed to set-aside the impugned summoning order dated 17.05.2017 passed by Additional Court No.10, Lucknow/Opposite Party No.3, judgment and order dated 30.05.2018 passed by Opposite party No.2 as well as the Complaint No. 4187 of 2016 "Rahul Gupta and Another Vs. Director Rohtas Projects Ltd. and Another", pending in the Court of Additional Court No. 10/Opposite Party No.3.
3. Learned counsel for the petitioner submits that, the Court below have failed to appreciate the contention of the petitioner, pertaining to the fact that, the cheque has been issued on behalf of a company and since the cheque has been issued for a company, keeping in view the various pronouncements of the Hon'ble Supreme Court and this High Court, the company is a necessary party in the complaint made U/s 138 Negotiable Instruments Act and if the company has not been arrayed as a party in the complaint, the complaint is not maintainable.
4. He further submits that, the Courts below have not appreciated this point and the trial Court has summoned the applicant, under Section 138 of Negotiable Instrument Act and the Revisional Court has also rejected Revision preferred by the applicant. He submits that, in absence of the company as a party in this proceedings, on whose behalf the cheque has been issued, the whole proceedings including the summoning order dated 17.05.2017 and proceeding of the complaint, pending before the Court below, pertaining to Section 138 of Negotiable Instrument Act are illegal and the same are liable to be quashed.
5. Learned counsel for the petitioner in support of his argument placed reliance on following Case Laws:-
"Aneeeta Hada Vs. Godfather travels and tours private ltd., (2012) 5 SCC 661 and N. Harihara Krishnan Vs. J. Thomas,2017 4 CCSC 2120 (SC) ".
6. Learned A.G.A., however, opposes the contention of learned counsel for the petitioner on the ground that, even if the company on whose behalf, the cheque has been issued and dishonoured has not been made a party, it may not amount to any illegality, as the same can be cured and the company on whose behalf, the cheques have been issued can specifically be impleaded and, therefore, there is no substance in the arguments of learned counsel for the petitioner.
7. Learned A.G.A. relied on "Usher Agro Ltd., Manoj Pathak Vs. State of U.P, and Another, (2018) 8 ADJ 336".
8. I have heard learned counsel for the parties and have perused the record.
9. The only argument of learned counsel for the petitioner is that, since in the complaint filed under Section 138 of the Negotiable Instrument Act, the Company namely Rohtas Projects Ltd. has not been made a party, the summoning of Directors of the Company by the Court below is abuse of the process of Law, and the complaint is itself not maintainable and, therefore, the proceeding pending before the Court below be quashed, as they are absolutely illegal. I have considered the Case Laws cited by the parties.
10. Hon'ble learned Single Judge of this Court in "Usher Agro Ltd., Manoj Pathak Vs. State of U.P. and Another, (2018) LawSuit(All) 2822" relied on by the learned A.G.A. has considered the "Aneeta Hada Vs. Godfather Travels and Tours Private Ltd. (supra) and N. Harihara Krishnan's case (supra)" and keeping in view the law laid down by Madhya Pradesh High Court in case of "Manish Kalani and Anr. Vs. Housing and Development Corporation Ltd. (HUDCO) Misc. Crl. No. 16285 of 2016", decided on 30.01.2018 formulated following 4 questions for adjudications:
"(i) Whether in a complaint filed under Section 138 N.I. Act in respect of an offence committed by a company the company is a necessary and proper party, in view of Section 141 of the N.I. Act or not.
(ii) Whether the failure on the part of the complainant to implead the company as an accused/oppos
