At, High Court of Kerala
By, THE HONOURABLE MR. JUSTICE B. SUDHEENDRA KUMAR
For the Petitioner: C.P. Peethambaran, V.A. Mini, Advocates. For the Respondents: R2, M.T. Sureshkumar, S. Sanal Kumar, N. Manu Thampi, P.R. Jayasankar, N. Bija Krishna, R1, Advocates, E.C. Bineesh, Public Prosecutor.
1. The petitioner is the accused and the second respondent herein is the complainant in C.C.No.6630/2011 of the files of the Court of the Judicial Magistrate of First Class, Irinjalakuda.
2. The second respondent filed a complaint against the petitioner before the court below alleging offence under Section 138 of the Negotiable Instruments Act (for short the 'Act'). The said complaint was filed before the court below on 18.10.2011. The court below took cognizance for the offence unde
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r Section 138 of the N.I.Act. After the legal formalities, the trial was commenced. During the cross-examination of the complainant, it was brought to the notice of the complainant that the Company was not made as an accused in the case even though the cheque was issued by the Managing Director of the company, for and on behalf of the company. Therefore, the petitioner filed Crl.M.P.No.10499/2014 praying for impleading the company as an accused. The court below as per Annexure-A5 order dated 7.1.2016 allowed the said application. Aggrieved by the said order, this Crl.M.C. has been filed.
3. This court appointed Adv.Shri.V.Sethunath as Amicus Curiae to assist this Court.
4. Heard the learned counsel for the petitioner, the learned counsel for the second respondent, the learned Amicus Curiae and the learned Public Prosecutor.
5. The learned counsel for the petitioner has submitted that the court below ought not have allowed the application impleading the company as an accused at the belated stage and that itself after taking cognizance for the offence under Section 138 of the N.I.Act and in the said circumstances, the order passed by the court below cannot be sustained.
6. The learned Amicus Curiae has submitted that the Magistrate is having the power to permit the complainant to incorporate the name of additional accused in the complaint if it is done within the period prescribed under Section 142(1)(b) of the Negotiable Instruments Act.
7. The transaction in this case was between the complainant and M/s.Qualis Toolers and Designers Private Ltd., which was a company incorporated under the Companies Act. However, the company was not made as an accused in the complaint.
8. In view of the law declared by the Hon'ble Apex Court in Aneeta Hada v.M/s.Godfather Travels and Tours Private Ltd. [AIR 2012(5) SCC 661 : AIR 2012 SC 2795], the prosecution against the petitioner cannot be successfully maintained without prosecuting the company as the drawer of the cheque in this case is the company.
9. The Apex Court in Harihakrishnan v. J Thomas [2017(4) KHC 699] held that complaint could be filed against the company within the period stipulated under Section 42(1)(b) of the Act. This would show that the complainant can implead the company as an accused within the period stipulated under Section 142(1)(b) of the Act. However in this case, the complainant was not impleaded within the period as stipulated under the Act. The question as to whether the complainant had sufficient cause for not filing the complaint against the company within the period prescribed under the N.I.Act was not examined by the court below. The court below ought to have ascertained as to whether the complainant had sufficient cause for not filing the complaint against the company within the period prescribed under the N.I.Act.
10. No doubt, Section 142 of the N.I.Act authorises the court to condone the delay in appropriate cases. Therefore, if the justification advanced by the complainant for not filing the complaint against the company within the period prescribed under the N.I.Act is acceptable, there is no bar in impleading the company even at the belated stage as the proviso to Section 142(1)(b) of the Act authorises the court to condone the delay in appropriate cases. The above view is supported by the ratio of the Apex Court in Harihakrishnan (supra).
11. Annexure-A4 is the petition filed by the complainant under Section 142 Cr.P.C. praying for permitting the complainant to amend the complaint to incorporate the company namely, M/s.Qualis Toolers and Designers Private Ltd. as the first accused. The reason stated in Annexure-A4 petition is that it was brought to the notice of the complainant only during the crossexamination of the complainant that the company was not made as an accused in the complainant. It is stated that it was an inadvertent mistake committed at the time of drafting the complaint. The justification advanced by the complainant that it was only during the time of crossexamination of the complainant that the complainant came to know that the company was not made as an accused, is a manifestly false statement and in the said circumstances, I find no reason to condone the delay. In view of the above reason, the order passed by the court below impleading the company as the first accused cannot be sustained and consequently, I set aside the same.
In the result, this Crl.M.C. stands allowed and Annexure-A5 passed by the court bellow stands set aside.