The division judge bench of Justice Krishna Murari and Justice Bela M. Trivedi of the apex court in the case of Pawan Kumar Goel Vs State of UP & Anr held that an additional accused can be impleaded subsequent to the filing of the complaint merits no consideration, once the limitation prescribed for taking cognizance of the offence under Section 142 of NI Act has expired.
BRIEF FACTS
The factual matrix of the case is that both the appellant and the respondents were having business dealings and Ravi Organics Limited was having a running account with the appellant. The respondent no. 2 has issued an account payee cheque for a sum of Rs 10 Lakhs in the favour of the appellant towards the discharge of its liability for supply of materials made by the appellant. Thereafter, when the appellant presented the cheque before the banker it was dishonoured and the legal notice were sent to the respondent no. 2.
Moreover, the criminal complaint was filed under section 138 Negotiable Instruments Act, 1881. The Sessions Court dismissed the criminal revision petition and held that the cheque was issued against outstanding payments arising out of commercial transactions between Respondent No. 2 and Appellant. Furthermore, the high court quashed the entire proceedings passed by the Magistrate placing reliance on the pronouncement of this Court in the case of Aneeta Hada Vs. Godfather Travels & Tours Pvt. Ltd and S.M.S Pharmaceuticals Ltd. Vs. Neeta Bhalla & Another.
The learned counsel appearing on behalf of the appellant has submitted that the cheque was issued towards payment of outstanding dues of supply of material due to the Appellant was dishonoured and hence the respondent is guilty of committing offence under the Negotiable Instruments Act and was righly summoned by the Trial Court to face the trial. It was further submitted that the high court has committed a grave error in quashing the summoning order as well as the proceedings. It was also submitted that there is no provision under the NI Act or the Criminal Procedure Code that forbids the amendment of a complaint or the inclusion of an additional accused after the complaint has been filed, and the complaint contained all necessary factual allegations constituting each of the ingredients of offence under Section 138 of the NI Act.
The learned counsel appearing on behalf of the appellant relied upon the judgment titled N.Harihara Krishnan Vs. J. Thomas, Bilakchand Gyanchand Co. Vs. A. Chinnaswami, and Rajneesh Aggarwal Vs. Amit. J. Bhalla.
The learned counsel appearing on behalf of the respondent has contended that the proceedings cannot be maintainable without the company has not been arrayed in the complaint. It is well established by a string of decisions that the complainant must make the necessary averments in the complaint that the accused was in charge of and responsible for the conduct and business of the company at the time the offence was committed if a complaint under Section 138 of the NI Act is filed regarding the dishonour of a check issued from the account of the company.
An fundamental element of Section 141 of the NI Act is this averment. It was further submitted that the infirmity in the complaint under Section 138 of NI Act for not impleading the company or not making specific averments in respect of the commission of offence by the company as required under the Act, cannot be said to be curable.
The learned counsel relied upon the judgement titled Aneeta Hada (Supra), SMS Pharmaceuticals Ltd. (Supra), and Himanshu Vs. B. Shivamurthy & Another.
ISSUES BEFORE THE COURT
- “Whether a director of a company would be liable for prosecution under Section 138 of NI Act without the company being arraigned as an accused.”
- “Whether a complaint under Section 138 of NI Act would be liable to be proceeded against the director of the company without their being any averments in the complaint that the director arrayed as an accused was in charge of and responsible for the conduct and business of the company.”
COURT’S OBSERVATION
The hon’ble apex court held that an additional accused can be impleaded subsequent to the filing of the complaint merits no consideration, once the limitation prescribed for taking cognizance of the offence under Section 142 of NI Act has expired.
More particularly, in view of the fact that neither any effort was made by the petitioner at any stage of the proceedings to arraign the company as an accused nor any such circumstances or reason has been pointed out to enable the Court to exercise the power conferred by proviso to Section 142, to condone the delay for not making the complaint within the prescribed period of limitation.
CASE NAME- Pawan Kumar Goel Vs State of UP & Anr
CITATION- CRIMINAL APPEAL NO. 1999 OF 2022
CORUM- Justice Krishna Murari and Justice Bela M. Trivedi
DATE- 17.11.22
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