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IN THE HIGH COURT OF MADHYA PRADESH
RAJEEV KUMAR DUBEY, J.
Manish Kalani - Appellant
Versus
Housing and Urban Development Corporation Ltd. - Respondent
M.Cr.C. No. 16282 of 2016
Decided On : 30-01-2018
Advocate Appeared:
For the Appellant :Mr. Sumit Nema, learned Senior Counsel with Shri Mukesh Agrawal, Advocate
For the Respondent: Mr. Sankalp Kochar, Learned Counsel, Mr. BP. Pandey, Learned G.A
The main legal point established in the judgment is that a complainant is entitled to amend a complaint under Section 138 of the Negotiable Instruments Act to include an accused, and notice sent to one party may be considered notice to another party. The court also clarified the revisable nature of orders refusing to take cognizance against an accused.
Headnote:
Negotiable Instruments Act - Amendment of Complaint - Section 141, Section 319 of Cr.P.C. - Section 138 of the Negotiable Instruments Act
Fact of the Case:
The complainant, Housing and Urban Development Corporation Limited (HUDCO), sanctioned and disbursed a loan to M/s. Jabalpur Treasure Island Pvt. Ltd. The Managing Director of the company issued a cheque to repay the loan, which was dishonoured. The complainant filed a complaint under Section 138 of the Act against the Managing Director. The non-applicant sought to amend the complaint to include the company as an accused.
Finding of the Court:
The court found that the complaint initially mentioned the company as an accused in the body of the complaint, even though its name was not in the cause title. The court held that the complainant was entitled to amend the complaint, and the notice sent to the Managing Director was sufficient notice to the company. The court also noted that the order refusing to take cognizance against the company was revisable.
Issues: The issues revolved around the maintainability of the revision against the order, the validity of the complaint, and the permissibility of amending the complaint to include the company as an accused.
Ratio Decidendi: The court held that the complainant was entitled to amend the complaint, and the notice sent to the Managing Director was sufficient notice to the company. The court also noted that the order refusing to take cognizance against the company was revisable.
Final Decision: The court dismissed the petition, finding that the non-applicant was entitled to amend the complaint to include the company as an accused, and the notice sent to the Managing Director was sufficient notice to the company.
RAJEEV KUMAR DUBEY, J.
1. This petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 against the order dated 08/07/2016 passed by IX Additional Session Judge, Bhopal in Criminal Revision No.60/2016, whereby learned Additional Session Judge set aside the order dated 04/12/2015 passed by Judicial Magistrate, I Class, Bhopal in Regular Criminal Case No.4499/2012, whereby learned JMFC rejected the application filed by non-applicant No.1 (complainant) under Section 141 of the Negotiable Instruments Act (for brevity "the Act") read with Section 319 of the Cr.P.C. and allowed the non-applicant No.1/complainant to amend the cause title of the complaint by impleading the name of Company i.e. M/s. Jabalpur Treasure Island Pvt. Ltd. formerly known as M/s. Entertainment World Jabalpur Pvt. Ltd. as accused.
2. Brief facts of the case which are relevant for just disposal of the petition is that the non-applicant No.1/complainant Housing and Urban Development Corporation Limited (HUDCO) had sanctioned loan and disbursed a sum of Rs. 66 crore to the applicant No.2 M/s. Jabalpur Treasure Island Pvt. Ltd. The applicant No.1 Manish Kalani was the Managing Director of the aforesaid company. In order to repay the said loan, applicant No.1 issued a cheque No.464770 dated 07/11/2011 amounting to Rs. 2,87,00,000/- drawn on Dena Bank Ltd., Branch Navlakha, Indore in favour of the non-applicant No.1. The said cheque was presented by non-applicant No.1 for encashment, but the same was dishonoured due to insufficiency of fund. The non-applicant No.1, therefore, served notice on the applicant No.1 through his counsel calling upon him to pay the cheque amount. Since, the non-applicant No.1 failed to pay the cheque amount within the prescribed period, the non-applicant filed a written complaint before the learned JMFC, Bhopal under Section 138 of the Act. On that complaint, learned Magistrate vide order dated 19/06/2012 took cognizance of the offence under Section 138 of the Act and issued process against applicant No.1.
3. The applicant No.1 has challenged the validity of the order dated 19/06/2012 passed by learned Magistrate by filing Cr.R.No.1131/2013 before this Court on the ground that the questioned cheque was issued by the Director of the company on behalf of Company i.e. M/s. Jabalpur Treasure Island Pvt. Ltd. (applicant No.2), so the complaint under Section 138 of the Act against the Director (applicant No.1) is not maintainable for fastening vicarious liability without impleading company as a party in the complaint. During pendency of that Criminal Revision before this Court the non-applicant has filed an application under Section 141 of the Act read with Section 319 of the Cr.P.C. before the trial Court for impleading the name of applicant No.2 i.e. M/s. Jabalpur Treasure Island Pvt. Ltd. in the cause title of the complaint and also taking cognizance against it. In reply, the respondent No.1 opposed the application. Learned trial Court observing that the provisions of Section 142(b) of the Act has not been complied with, therefore, cognizance cannot be lawfully taken against the company and rejected the non-applicant's application, against which non-applicant No.1 filed Criminal Revision No.60/2016. Learned ASJ vide order dated 08/07/2016 set aside the order passed by the trial Court and allowed the application and permitted non-applicant No.1 to amend the cause title of the complaint by impleading the name of company i.e. M/s. Jabalpur Treasure Island Pvt. Ltd. Being aggrieved by the impugned order applicants has preferred this revision.
4. Learned counsel for the applicants submitted that the order dated 04/12/2015 passed by the learned trial Court is an interim order, against which revision is not maintainable. Learned Additional Sessions Judge has wrongly entertained the revision against the said order. Even the Court is not empowered to review its order. In this regard learned counsel placed reliance on the ju
