IMPORTANT POINT
A complaint under Section 138 of the N.I. Act is not maintainable if the company that issued the cheque is not impleaded as an accused, as vicarious liability of the proprietor arises only when the company is part of the proceedings.

JUDGMENT :

ARUN KUMAR SINGH DESHWAL, J.

1. Heard Sri Bhuvnesh Kr. Singh, learned counsel for the applicant, Sri Sushil Kr. Chaturvedi, learned counsel for opposite party No. 2 and Sri Rajeev Kr. Singh, learned A.G.A. for the State.

2. The instant application has been filed seeking quashing of entire proceeding of Complaint Case No. 14 of 2018 (Smt. Manju Sharma vs. Jitendra Mangala), u/s 138 N.I. Act, P.S. Tajganj, District Agra, pending before the Additional Court No. 1, Agra as well as summoning order dated 1.9.2018.

3. The factual matrix giving rise to the present case are that the complaint was filed by opposite party No. 2 against the applicant u/s 138 N.I. Act. In the aforesaid complaint, it was mentioned that cheque was issued by M/s Prerana Construction Pvt. Ltd., but only the present applicant who is the proprietor of the company M/s Prerana Construction Pvt. Ltd. was impleaded as accused. The court below after perusal of the record, summoned the present applicant by summoning order dated 1.9.2018 and by way of present application, the proceeding of aforesaid complaint case is under challenge.

4. Learned counsel for the applicant submits that it is undisputed that the cheque in question was issued on behalf of the company M/s Prerana Construction Pvt. Ltd., but while filing the impugned complaint, the company in question was not impleaded as accused. Therefore, the proceeding cannot be proceeded against the accused who is the proprietor of the company who is vicariously liable only when the company is impleaded as a party in the complaint. Therefore, the impugned complaint is barred by Section 141 N.I. Act. Learned counsel for the applicant also argued that in case paragraphs No. 6 of 13 of Himanshu vs. B. Shivamurthi and another, (2019) 3 SCC 797, Hon'ble Apex Court observed that the complaint, in absence of the company, is defective and at this stage company cannot be arrayed. Therefore, fresh complaint is also barred because fresh notice is required to be given to the company which is necessary for arising of the cause of action.

5. per contra learned counsel for opposite party No. 2 and learned A.G.A. submitted that the cheque in question was issued on behalf of the company by the applicant, therefore, he is personally liable, therefore, there is no illegality in the summoning order and the impugned proceeding.

6. Considering the rival submissions of the parties and on perusal of the record, it appears that the cheque in question was issued on behalf of the company M/s Prerana Construction Pvt. Ltd. to opposite party No. 2, but while filing the impugned complaint, opposite party No. 2 did not implead the company as accused which is the basic requirement u/s 141 N.I. Act.

7. The Apex Court also in the cases of Aneeta Hada vs. M/s God Father Travels and Tours Pvt. Ltd. (2012) 5 SCC 661, Himanshu vs. B. Shivamurthi and another, (2019) 3 SCC 797, Dilip Hariramani vs. Bank of Baroda, 2022 Live Law (SC) 457 as well as N. Harihara Krishnan vs. J. Thomas, 2018 (3) SCC 663 observed that without impleading the body corporate which includes the company itself, proceeding u/s 141 N.I. Act cannot be proceeded.

8. So far as the contention of learned counsel for the applicant that fresh complaint after impleading the company is also barred because Hon'ble Apex Court in the case of Himanshu vs. B. Shivamurthi (supra) has observed that in absence of notice of demand, being served on the company, the company cannot be arrayed as accused, is concerned, in the case of Himanshu vs. B. Shivamurthi (supra) the issue was whether on objection raised by the accused that company was not impeaded as party in the complaint filed for dishonoring of the cheque on behalf of the company but the High Court has permitted to implead the company and Hon'ble Court observed that as the statutory demand notice was not issued to the company, therefore, at this stage company cannot be proceeded by impleading the same in the complaint. Paragraphs No. 6, 11 & 13 of