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IN THE COURT OF MS AAKANKSHA VYAS
MM NI ACT (WEST), DELHI
CC No.3102/1
Sh. Om Parkash Arora
H.No. B24/1, Sainik Nagar,
Uttam Nagar, New Delhi. .....Complainant
Versus
1.Pradeep Arya
2. Prem Kumar Both Directors /Authorised Signatory M/s. Sukhdata Chits Pvt. Ltd.
1, Jai Complex, Shiva Market, Pitampura, Delhi. .........Accused Date of Institution : 15.09.2014 Offence complained of : U/s 138 N.I. Act. Date on which the order was reserved : 06.05.2016 Date of Decision : 06.05.2016 Final Order : Acquitted / Held not guilty. CC No.3102/1 Om Parkash Arora vs Pradeep Arya etc 1/ 7 Judgment Factual Matrix:
1. Vide this order, I shall dispose of the present complaint which has been filed against the accused no.1 & 2 and for dishonor of the cheques bearing no. 125855, 205617 & 145287 u/s 138 of the Negotiable Instrument Act 1881 (hereafter referred to as the NI Act) issued by the accused in favour of the complainant.
2. A brief mention of the lis is in order. Suffice it to state that the complainant herein invested money in M/s. Sukhdata Chits Pvt. Ltd. run by accused no.1 and 2. After the maturity period the complainant asked the accused persons to return the chit amount and therefore the accused issued the cheques in question drawn on the account of M/s. Sukhdata Chits Pvt. Ltd. but upon presentation they were dishonored for the reason account closed. This prompted the complainant to file the present complaint u/s 138 of NI Act impleading Sh. Pradeep Arya and Sh. Prem Kumar (Directors of M/s. Sukhdata chits Pvt. Ltd.) as accused no.1 & 2.
3. In support of his case the complainant placed on record the original cheques in question Ex.CW1/A to C, returning memos Ex.CW1/D1 to Ex.CW1/D3, Legal notice, postal receipt and internet track report Ex.CW1/E, Ex.CW1/F (Colly) and Ex.CW1/G (colly) and led evidence by way of affidavit Ex.CW1/A1.
4. Vide order dated 16.10.2014, both accused were summoned.
Thereafter notice was also framed upon them under section 251 Cr.PC CC No.3102/1 Om Parkash Arora vs Pradeep Arya etc 2/ 7 vide order dated 09.02.2015. However on a subsequent date, the accused contended that the present complaint was not maintainable as M/s Sukhdata Chits Pvt. Ltd. had not been impleaded as an accused. Therefore the prosecution of only accused no. 1 & 2 who are directors of M/s. Sukhdata Chits Pvt. Ltd. under section 138 read with section 141 was not proper as no liability could be imputed to the abovementioned accused in the absence of the M/s Sukhdata Chits Pvt. Ltd. Accordingly, an application was filed by the accused persons for dropping of proceedings. In support of the application, the Ld. counsel primarily relied upon the judgment of the Supreme Court in Anita Hada vs God Father Travels and Tours Pvt. Ltd., (2012) 5 SCC 661 as well as Anil Gupta vs Star India Pvt. Ltd., AIR 2014 SC 3078. Additionally, an application was also filed by the accused persons u/s 145(2) of the NI Act seeking cross examination of the complainant.
5. In Anita Hada vs God Father Tours and Travels Pvt. Ltd.
(Supra) the question before the court was whether any person who has been mentioned in section 141(1) and 141(2) of the NI Act can be prosecuted without the company being impleaded as an accused. Section 141 deals with the vicarious liability of the directors and other persons, incharge of the affairs of the company where the cheque dishonored has been drawn by the company. In the context of this provision, in para 42 of the said judgment, it has been observed that:
"commission of offence by the company is an express condition precedent to attract the vicarious liability of others. Thus, the words "as well as the company appearing in the section make it CC No.3102/1 Om Parkash Arora vs Pradeep Arya etc 3/ 7 absolutely unmistakably clear that when the company can be prosecuted then only the persons mentioned in the other categories could be vicariously liable for the offence subject to the averments in the petition and prove thereof. One cannot be oblivious of the fact that the company is a juristic person and it has its own respectability. If a finding is recorded against him it could create a concavity in its reputation. There can be situations when the corporate reputation is affected when the director is indicted".
6. Thus, in view of the observation in the aforementioned judgment, it is evident that the directors of the company cannot be prosecuted for the commission of offence of dishonor of cheque unless the company is also proceeded against and a complaint filed without observing the aforementioned requirement is not maintainable.
7. The Ld. counsel for the complainant though not exactly conceding the point, nevertheless filed an application for impleadment of M/s Sukhdata Chits Pvt. Ltd. as an accused. This application was strongly opposed by the Ld. counsel for the accused on the ground that there is no provision in the Code of Criminal Procedure which enables the amendment of a complaint. On the other hand, in support of his application, the complainant cited the decision of the Supreme Court in S.R. Sukumar v. Sunaad Raghuram (decision dated 2.7.2015 in Crl. Appeal no. 844 of 2015).
8. Vide detailed order dated 02.04.2016, this court has already CC No.3102/1 Om Parkash Arora vs Pradeep Arya etc 4/ 7 dismissed the application filed by the complainant seeking the leave of the court to implead M/s. Sukhdata Chits Pvt. Ltd. as an accused. The relevant portions of that order are being reproduced below:
"The judgment of the Supreme Court in Anita Hada vs God Father Travels and Tours Pvt. Ltd., (2012) 5 SCC 661 is conclusive on the legal point at hand and forecloses any further discussion on whether it is imperative to implead a company when a complaint against the directors thereof is filed under section 138 of the NI Act. However whether the complainant can be permitted to subsequently implead the company also as an accused under section 319 CrPC or otherwise is the next issue that requires consideration.
I find that there is no provision in the Code of Criminal Procedure which would permit amendment of a complaint so as to array an additional accused. I am also unable to derive any such authority from the judgment cited by the Ld. counsel for the complainant. In S.R. Sukumar's case (supra), the apex court upheld the order of the trial court permitting the amendment of the complaint in that case on account of the peculiar facts of that case namely cognizance of the offence had not been taken, process had yet not been issued against the accused, the amendment did not change the original nature of the complaint and the amendment prevented multiplicity of proceedings. The Court specifically relied upon another judgment of the Supreme Court in the case of U.P. Pollution Control Board v Modi Distillery & Ors (1987) 3 SCC 684 wherein the Supreme Court had held that if the amendment sought to be made is of a simple CC No.3102/1 Om Parkash Arora vs Pradeep Arya etc 5/ 7 infirmity curable by means of a formal amendment then the court may permit such an amendment to be made. In U.P. Pollution Control Board v. Modi Distillery, in a prosecution launched under section 44 of the Water (Prevention and Control of Pollution Act) 1974, the amendment in the complaint was permitted as the company concerned had been made an accused but had been wrongly described as an industrial unit. However the amendment which is sought to be made in the present complaint is not of a formal nature as what is sought to be done is impleadment of one more entity as an accused.
Further, the non impleadment of M/s Sukhdata Chits Pvt. Ltd by the complainant is a defect which goes to the root of the complaint impinging its maintainability and this defect cannot be cured through section 319 CrPC. The counsel has relied upon the decision of the Madras High Court in S. Viswanathan v. United Phosphorus, 2000 (1) Crimes 113 where in a similar set of facts, it was held that:
"is no doubt true that Section 319 of the Criminal Procedure Code permits impleading another accused in the course of enquiry or trial when it appears from the evidence that another person also has committed the offence. The court has held in Anandan v. Anvazhagan that without impleading the company the complaint against the petitioner is not sustainable and that when the complaint has the initial defect, the defect cannot be cured by amending the proceedings under Section 319 of the Criminal Procedure Code."
CC No.3102/1 Om Parkash Arora vs Pradeep Arya etc 6/ 7 A similar view was taken by the Madras High Court in Anandan and Anr. v. Arivazhagan 1999 96 CompCas 503 Mad and Suryanarayanan v. Anchor Marine Services 1998 94 Comp Cas 874 and the same were relied upon by the court in S. Visvanathan's case (supra).
I am in agreement with the decisions of the Madras High Court cited above. Accordingly, the application filed by the complainant for impleadment of M/s Sukhdata Chits Pvt. Ltd. as an accused stands disallowed".
9. The necessary concomitant of the foregoing discussion is that the present complaint is not maintainable and the complainant not been entitled to any succour by way of amendment of complaint, the accused no.1 and 2 are acquitted of the commission of offence u/s 138 of the NI Act.
Announced today in the (AAKANKSHA VYAS) open court on 06.05.2016 MM NI ACT (WEST)/DELHI/06.05.2016 CC No.3102/1 Om Parkash Arora vs Pradeep Arya etc 7/ 7