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2023 Supreme(Online)(KER) 30761
HIGH COURT OF KERALA
N. NAGARESH, J
SAJEEB S.,
– Appellant
Versus
ABDUL SALAM, – Respondent
Crl.Rev.Pet 1414 2019
S.JUSTUS, SRI.K.T.SEBASTIAN, SRI.C.DHEERAJ RAJAN, SRI.N.R.SANGEETH RAJ, PUBLIC PROSECUTOR
The absence of a company as an accused does not render a complaint under Section 138 of the Negotiable Instruments Act unmaintainable.
Headnote:
Cheque - Negotiable Instruments - Cr.P.C. Section List - The court upheld the rejection of the discharge petition filed under Section 245(2) Cr.P.C. by interpreting the principles set forth in Sections 138 and 190 of the Negotiable Instruments Act, asserting that the absence of a company as an accused does not invalidate the complaint.
Fact of the Case:
The petitioner was accused of dishonoring a cheque related to a personal loan obtained from the respondent. The petitioner sought discharge on grounds of a mistake in his address and the non-impleadment of the company that issued the cheque.
Issues: Whether the rejection of the discharge petition was justified given the mistake in the address and the non-impleadment of the company as an accused.
Ratio Decidendi: The court ruled that procedural errors regarding address can be cured and that the absence of a company in the accused list does not nullify the maintainability of a cheque dishonor complaint.
Final Decision: The Criminal Revision Petition is dismissed.
O R D E R
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The revision petitioner, who is accused in a private complaint, is aggrieved by the rejection of his petition for discharge filed under Section 245 (2) Cr.P.C. in CMP No.468/2019 in CC No.949/2017 of the Judicial First Class Magistrate's Court, Kodungallur.
2. In a petition filed under Section 190 Cr.P.C. and Section 142 of the Negotiable Instruments Act , the 1st respondent alleged that on 24.10.2014, the petitioner availed a personal loan of ₹2,50,000/- from the 1st respondent and on the very same day, the petitioner executed a cheque for ₹2,50,000/- in discharge of the liability. The cheque, when presented, was dishonoured stating “Funds insufficient” and “Refer to drawer”. The statutory notice sent by the 1st respondent was not responded to by the petitioner. The act of the petitioner amounts to offence punishable under Section 138 of the .
3. In the said CC No.949/2017, the petitioner filed a discharge petition invoking Section 245 (2) Cr.P.C. The Judicial First Class Magistrate's Court, Kodungallur held that the mistake in the address of the petitioner is not a valid ground for discharge, since the mistakes can be cured at any time. The Judicial First Class Magistrate's Court, Kodungallur found that there is no merit in the application for discharge and consequently, dismissed the discharge petition as per order dated 06.09.2019.
4. The counsel for the petitioner argued that the cheque is issued by a company named Al-Furson Trading Company and the company was not made an accused in the private complaint. Even the name of the accused is mentioned as “Sajeev V.S.” instead of “Sajeeb S.”.
5. The petitioner argued that in view of the judgment of the Aapex Court inHimanshu v. Shivamurthy and another [ (2019) 3 SCC 797 ], in the absence of the company being arrayed as an accused, a complaint against the appellant is not maintainable. The petitioner therefore argued that the rejection of his discharge application by the Magistrate's Court is illegal and unsustainable.
6. I have heard the learned counsel for the petitioner, the learned counsel appearing for the 1st respondent and the learned Public Prosecutor representing the 2nd respondent-
State.
7. The argument of the petitioner is that the cheque involved in the case is drawn by M/s. Al-Furson Trading Company, but the company is not arrayed as accused in the private complaint. The petitioner would further contend that his address mentioned in the private complaint is not correct and that the Reserve Bank of India has declared that all the cheques issued after 31.03.2014 are invalid as non-CTS cheques. The petitioner also produced a Circular dated
16.07.2013 to prove his contention.
8. I find that if there is error in the address mentioned in the complaint, it cannot be pressed as a reason to discharge the petitioner as the mistake can be cured subsequently. The further argument of the petitioner is that the cheque issued is drawn by M/s. Al-Furson Trading Company and the company is not made a party in the complaint. The petitioner relied on the judgment in Himanshu (supra) and asserted that in the absence of the company in the party array, a complaint is not maintainable.
9. In this regard, it is to be noted that the 1st respondent had sent a notice under Section 138 to the petitioner for realisation of the debt. The petitioner did not send any reply. The grievance relating to non-impleadment of Company was made only in the discharge petition. The entity alleged to be a Company is described as Al-Furson Trading Company. The statutory status of the said entity, identity of the Company, etc. are to be decided after adducing evidence.
10. In the facts and circumstances of the case, the petitioner cannot seek a discharge at this stage. Therefore, I find no reason to interfere with the order passed by the Judicial First Class Magistrate's Court, Kodungallur in CMP No.468/2019 in CC No.949/2017.
The Criminal Revision Petition is therefore dismissed.
