HARI SHAMSHER KAUSHIK Vs. JASBIR SINGH, MANAGING DIRECTOR

JUDGEMENT

(1.) This petition has been filed under Sec. 482 Cr.P.C. by the complainant for setting aside the orders dtd. 28/8/2015 and 23/10/2017, passed by the learned Trial Court and the learned Appellate Court respectively, dismissing his complaint case.

(2.) The petitioner had filed a complaint case under Sec. 138 of Negotiable Instruments Act, 1881 ("N.I. Act", for short) against the respondent. It was stated in the complaint that the commercial space owned by the petitioner in Punjabi Bagh (West) had been let out upon terms and conditions incorporated in the registered Rent Agreement dtd. 23/2/2010. This was executed between the petitioner (landlord) and the respondent's company, namely, M/s Accura Care Pharmaceuticals Pvt. Ltd. through its Managing Director i.e., the respondent. In March-April, 2013 the respondent is alleged to have issued five cheques across the company duly signed by him as Managing Director to discharge the company's liability to pay the rent aggregating to Rs.16,95,000..00 These bounced. As a result of which, the complaint was filed.

(3.) Mr. Mahesh K. Mehta, learned counsel for the petitioner submitted that the learned Trial Court dismissed the complaint observing that since the company had not been impleaded as an accused, the liability of the respondent as its Managing Director could not be attached under sec. 141 of the N.I. Act. Reliance was placed on the judgment of the Supreme Court in Aneeta Hada v. Godfather Travels and Tours (P) Ltd., (2012) 5 SCC 661. According to the learned counsel for the petitioner, this reliance was misplaced and instead of rectifying the error, the learned Appellate Court also concluded that the dismissal of the complaint was proper, as the Trial Court had followed the decision of the Supreme Court which had held that for maintaining the prosecution under Sec. 141 of the N.I. Act, the Company had to be arrayed mandatorily as an accused. The learned counsel has relied on various judgments, S.R. Sukumar v. S. Sunaad Raghuram, (2015) 9 SCC 609; Rajneesh Aggarwal v. Amit J. Bhalla, (2001) 1 SCC 631; Bilakchand Gyanchand Co. v. A. Chinnaswami, (1999) 5 SCC 693; U.P. Pollution Control Board vs Modi Distillery and Ors, 1988 AIR 1128 and Manish Kalani and Another v. Housing and Urban Development Corporation Ltd. (Hudco) and Another, 2018 MPHC 13, to contend that when the lacuna was only of a technical nature, then the Trial Court ought to have allowed amendment of the complaint, rather than dismissing it. Thus, it was prayed that the impugned order be set aside and the complaint be restored, granting an opportunity to the petitioner to amend his plaint to, ipso M/s Accura Care Pharmaceuticals Pvt. Ltd.