A complaint against Directors for the dishonour of a cheque issued on behalf of a Company must include the Company as a party, in accordance with the law laid down by the Apex Court.

Anand Byrareddy, J.—Heard the Senior Advocate, Mr. Naganand, appearing for the Counsel for the petitioner and Mr. R.L. Patil, the Counsel appearing for the respondents. The respondent is the complainant before the trial Court alleging an offence punishable under Section 138 of the Negotiable Instruments Act, 1881, against the petitioner and the Court below having taken cognizance, the petitioners are before this Court.

2. The issue raised is to the effect that in view of the law as laid down by the Apex Court by a three-Judge Bench decision in the case of Aneeta Hada v. Godfather Travels and Tours Pvt. Ltd.,II (2012) CCR 195 (SC) : III (2012) SLT 417 : II (2012) DLT (Crl.) 315 (SC) : II (2012) BC 638 (SC): (2012) 5 SCC 661 , any complaint against a Company cannot be brought in the name of its Directors, without the Company being made a party. This is the law as stated by the Apex Court, overruling the earlier decisions which were to the contrary. Therefore, the Court below having taken cognizance in respect of the complaints made only against the Directors as the signatories of the cheques in question, that had been issued on behalf of the Company incorporated under the Companies Act, 1956, is a question that would have to be decided in favour of the petitioners, The lower Court could not have taken cognizance in the face of the complainants not having arraigned the Company as a party to the complaint.

3. The learned Counsel for the respondent, on the other hand, would submit that the complaints were filed as on 5.8.2003. It is his further case that as on the said date, the law as stated by the Apex Court in the case of Anil Hada Vs. Indian Acrylic Limited, AIR 2000 SC 145 : I (2006) BC 143 (SC) : (2000) 1 SCC 1, which laid down that the complaint could be brought against the Director, the signatory of the cheque, without making the Company as a party and, therefore, the complaint was valid as on the said date and the Court below having taken cognizance is, therefore, not out of place. Notwithstanding the subsequent judgment of the Apex Court which has been rendered, only as on 27.4.2012. As on that date, the proceedings were in abeyance. In that, the petitioners herein had questioned the order of the Court below and having regard to an order of stay granted by this Court of all further proceedings, when the present petitioners questioned the order of issuance of process to them and it is only recently, those petitions were dismissed which enabled the respondents to proceed further with the complaints pending before the Court below. Even if there is a requirement of the Company being made as a party as on this day, corrective measures could be taken with the leave of the Court below, in that regard.

4. As regards the leave of the Company Court, which has incidentally raised by the learned Senior Advocate appearing for the Counsel for the petitioner, which was not forthcoming when the petitioner's Company being in winding up. The requirement of the leave of the Court under Section 446 of the Companies Act, 1956, appropriate steps would also to be taken in that regard. Therefore, the learned Counsel would submit that as a matter of form, the order of taking cognizance of the offence is held to be invalid on account of the Company not being made a party to the complaint in view of the decision in the case of Aneeta Hada v. Godfather Travels and Tours Pvt. Ltd. (supra), the respondents be left to its remedies in taking corrective measures insofar as the form in which the complaints should be brought and other necessary steps that may have to be taken to bring the complaints in accordance with law and, therefore, would submit that the proceedings cannot be quashed in entirety, even if the order of taking cognizance has to be set aside, in the opinion of this Court.

5. Given the above circumstances, in view of the law laid down in the case of Aneeta Hada v. Godfather Travels and Tours Pvt. Ltd. (supra), it is no longer possible for