For a complaint under Section 138 of the NI Act to be maintainable against company directors, the company must be impleaded as the primary accused, as vicarious liability under Section 141 requires the company to have committed the offence.

ORDER

This criminal original petition has been filed praying to quash the proceedings in CC.No.387 of 2022 on the file of the Learned Judicial Magistrate, Fast Track Court, Alandur.

2. The petitioners are arrayed as A1 and A2 in the complaint lodged by the respondent for the offence punishable under Section 138 of NI Act alleging that Vishwanatha Rao and Tara Bai (parents of the Complainant) died intestate leaving the Complainant and her 5 brothers without any declaration on partition of the properties. A suit in C.S.No. 1004/2008 was filed by the Complainant before this Court as against her brothers (Defendants 1 to 5 therein) for partition and separate possession of her 1/6th share in the suit properties and later the said suit was transferred to the Learned III Additional City Civil Court, Chennai and re-numbered as O.S.No.2368 of 2020. Thereafter, the brothers of the complainant fraudulently entered into a partition deed dated 16.11.2021 registered as document No.19419 of 2021 on the file of the Sub Registrar, Thiruporur. In respect of property measuring about 4.05 acres situated at Pandur Village, Chengalpattu District suppressing the pendency of the partition suit, thereafter a sale agreement was executed by them in favour of M/s.Shri Krish Housing and Properties Pvt Ltd, in Document No.21506/2021 registered before the Sub Registrar, Thriuporur. A Power of Attorney dated 09.12.2021 was also executed by V.Murali, in favour of M/s.Shri Krish Housing and Properties Pvt Ltd. registered in Document No.21507/2021. Thereafter, the complainant had filed interlocutory application in OS.No.2368 of 2020 to implead the M/s.Shri Krish Housing and Properties Private Limited. The Managing Director of the company M/s.Shri Krish Housing and Properties Pvt Ltd has approached the Complainant for compromise and agreed to pay the above sale consideration for her 1/6th share for a sum of Rs.1,41,75,000/- (Rupees One Crore Forty One Lakhs Seventy Five Thousand only) but the Managing Director of M/s. Shri Krish Housing and Properties Pvt Ltd failed to pay the said consideration amount. Thereafter he issued a cheque for the above said amount on 28.03.2022. The cheque was returned unpaid on 30.05.2022 with the endorsement "Payment stopped by drawer". The Complainant caused a Legal Notice and thereafter filed complaint.

3. The learned counsel appearing for the petitioners raised ground that the complaint itself is not maintainable to attract the offences under Sections 138 and 142 of NI Act for the reason the respondent failed to issue statutory notice to the company and failed to add the company as accused in the complaint since the cheque was issued by the company called M/s.Shri Krish Housing and Properties Private Limited whereas notices were issued to the Directors of the Company and complaint was lodged only as against the Directors of the company without adding the company as accused.

4. Heard, the learned counsel appearing for the petitioners and perused all the materials placed before this Court. Though notice was served on the respondent and her name has been printed in the cause list, no one appeared before this Court either by party or through pleader.

5. The Hon’ble Supreme Court of India and this Court repeatedly held that for the complaint for the offence punishable under Section 138 of NI Act, the company should be added as party when the cheque is issued on behalf of the company and by the company. It is relevant to extract the provisions under Section 141 of NI Act hereunder:

“141. Offences by companies.—(1) If the person committing an offence under Section