HARISH CHAND PANDEY Vs. ROGER MED.

JUDGEMENT

(1.) Sudhir Mittal, J. (Oral) 1. The petitioner is a Director of Company known as Phynix Comglomerate Ltd. (hereinafter referred to as 'Phynix'). He has been summoned as an additional accused on an application filed under Sec. 319 Cr.P.C. vide order dtd. 28/7/2017, which is under challenge in the present quashing petition.

(2.) The aforementioned Phynix was wholesale distributor of medicines and the complainant - Ms Roger Med. supplied medicines to it for further distribution. In discharge of its liability, a cheque dtd. 30/8/2016 for a sum of Rs.2.00 lacs was issued in favour of the complainant but the same was dishonored. Consequently, a notice under Sec. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ' the Act') was issued to the accused mentioned in the complaint (copy of which is Annexure P-1). Since the cheque amount was not paid even after expiry of the statutory period provided under Sec. 138 of the Act, complaint dtd. 2/11/2016 was filed. Affidavit of authorized person of the complainant was filed in the pre-summoning evidence on 3/11/2016. The said affidavit is identical in language to what has been stated in the complaint. Thereafter, a Clerk from the office of Registrar of Companies appeared on 24/1/2017 and submitted some record, according to which the petitioner was also a Director of Phynix on the date of issuance of the cheque. Consequently, application dtd. 16/3/2017 was filed under Sec. 319 Cr.P.C. and vide the impugned order dtd. 28/7/2017 the petitioner was summoned to face trial as an additional accused.

(3.) Learned counsel for the petitioner submits that proviso to Sec. 138 of the Act makes it abundantly clear that cause of action to file a complaint arises only upon issuance of notice to an accused person and non-payment of the cheque amount despite notice having been served within the statutory prescribed period. The petitioner was not issued any notice under Sec. 138 of the Act and, thus, no cause of action arose in favour of the complainant to file a complaint against him. The offence under Sec. 138 of the Act is 'person specific' and a Court can only take cognizance against an accused after the conditions prescribed in the proviso to Sec. 138 of the Act have been fulfilled. No Court can take cognizance of an offence under Sec. 138 of the Act while summoning a person as an additional accused in exercise of jurisdiction under Sec. 319 Cr.P.C. Reliance is placed upon N. Harihara Krishnan vs. J. Thomas, Criminal Appeal No. 1534 of 2017 decided on 30/8/2017.