Impleadment of the company as an accused and specificity of role in the complaint are necessary to establish vicarious liability under Section 138 and 141 of the N.I. Act.

ORDER

1. This petition under Section 482 Cr.P.C. has been filed by the petitioner being aggrieved by the order dated 20.05.2019 in case No. SC NIA 158/2018 passed by learned JMFC Narsinghpur whereby the learned JMFC has framed the charge under Section 138 N.I. Act against the petitioner.

2. According to case, respondent is a trade firm and filed a complaint through its proprietor against the petitioner who is the chairman of company namely 'Well Built Industry India Ltd., Kalyan Pura, Ashta, District-Sehore'. It is mentioned in the complaint that on account of business relation between the parties, the petitioner borrowed money of Rs. 2,00,000/- from the respondent on 14.08.2016. He assured the respondent to return the same within a period of four months. But, after expiry of stipulated period, when the respondent demanded his money, the petitioner started procrastinating and after insisting, the petitioner has given a cheque No. 000051 dated 25.11.2017 amounting to Rs. 2,00,000/- to the respondent. On 18.01.2018, when the respondent submitted the said cheque before the bank, same was dishonoured due to "stop payment" by the petitioner. Thereafter, the respondent sent a legal notice to the petitioner, even then he did not make payment, hence, the respondent filed a complaint before JMFC, Narsinghpur.

3. Learned counsel for the petitioner submits that according to complaint, the respondent has given the amount in question to the petitioner for business purpose and the petitioner has given the said cheque under the capacity of chairman of company namely 'Well Built Industry India Ltd.' but the respondent has not impleaded the company as a party in the complaint case. The respondent/complainant also failed to specify the role of present petitioner on behalf of the company. Hence, in view of the provision of Section 141 N.I. Act, the proceedings under Section 138 N.I. Act are bad in law and deserves to be quashed. With the aforesaid, he prays to allow this petition. In support of his contention, he has relied on the order passed by this Court in M.Cr. C No. 50567/2018 (Brij Mohan Sharma vs. M/s Sanfield (India) Ltd. Dated 05.02.2019.

4. On the other hand, learned counsel for respondent opposes the petition submitting that since, the petitioner has borrowed the money from the respondent for his own business purpose, there was no need to implead the company as an accused. He further submits that even though the petitioner is responsible to return the money but if the law intends to implead the company as party, the respondent may prefer an application before the trial court, in this regard. With the aforesaid, he prays for dismissal of this petition. In support of his contention he has relied the judgment of Hon'ble Apex Court in the case of Saroj Kumar Poddar vs. State NCT of Delhi and another passed in Appeal (Crl.) 70/2007.

5. Heard both the parties and perused the case.

6. On perusal of case, it appears that the petitioner is a chairman of company namely 'Well Built Industry India Ltd. Kalyanpur, Astha' which is registered under the companies Act, 2013. It is an admitted fact that the disputed cheque has been issued on behalf of the company. Therefore, before examining the facts of the case, it would be appropriate to consider the legal aspect first.

7. Section 138 of N.I Act speaks about the offence for dishonouring of cheques, which is quoted as under:-

"138 Dishonour of cheque for insufficiency, etc., of funds in the account. ? Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deem