SUMAN DEVI Vs. CHHATARPAL

JUDGEMENT

(1.) The present petition has been filed under Sec. 482 Cr.PC for setting aside the order dtd. 17/1/2018, Annexure P-4, passed by learned Judicial Magistrate, 1st Class, Kaithal, vide which the amendment application filed by the complainant-respondent was allowed.

(2.) Briefly put, the facts as per emerge from the complaint, Annexure P-1 are that on 15/6/2015, the petitioner had borrowed an amount of Rs.20.00 lakh for one month from the respondent for purchasing petrol and diesel, as she was running a petrol pump. To discharge the liability, she had issued a cheque dtd. 7/8/2015 of the aforesaid amount, which on presentation by the respondent with the bank, got dishonoured vide memo dtd. 8/8/2015 with remarks "funds insufficient". Thereafter, the complainant-respondent served a legal demand notice dtd. 17/8/2015, at 1 of 10 the complete and correct address of the petitioner which was refused to be accepted by the petitioner. Hence, the present complaint was filed. During the pendency of the present complaint, the respondent filed an application for impleading the Proprietorship Aum Oil Kissan Sevak Kende Habri through its Proprietor Suman Devi by way of amendment of the complaint, which has been allowed vide impugned order dtd. 17/1/2018.

(3.) Learned counsel for the petitioner had submitted that the learned trial Court has committed a grave error in allowing the application, as there is no provision for amendment of the complaint under the Negotiable Instruments Act. The cheque in question was of the proprietorship firm, though signed by the petitioner but the complaint was filed against the petitioner in her personal capacity and not as a sole proprietor, as such the complaint is liable to be dismissed. Furthermore. He placed reliance of the judgments in the cases of Himanshu vs. B. Shivamurthy and another, Criminal Appeal No.1465-2009 decided on 17/1/2019, by Hon'ble The Supreme Court of India and Ramesh Nagarkoti vs. Kedar Datt Purohit, Criminal Appeal No. 426 of 2018, decided on 03.03.20221 by High Court of Uttrakhand, to contend that as per Sec. 141 of the Act, in the absence of the company being arraigned as an accused, it cannot be held to maintainable against the appellant, who had signed the cheque as a Director, for and on behalf of the company.