The Delhi High Court has held that if the company is the drawer of the cheque, a notice of complaint should issue separately to the company and its members to initiate proceedings under section 138 of the Negotiable Instrument Act, 1881
The petitioner, Geeta Singh filed a petition against the impugned order and judgment dated 13th September 2017 passed by learned Additional Sessions Judge in which the revision petition was allowed and set aside the order of summoning under Section 216 of the CrPC. filed by the petitioner against the respondent. The petitioner instituted a Complaint under Section 138 of the Negotiable Instruments Act, alleging that the respondent had taken a loan from the petitioner for a sum of Rs. 99,00,000/- and failed to pay the amount by dishonouring seven post-dated cheques amounting to Rs. 80,00,000/- It was alleged that ASJ has committed an error by presuming the cheque in question was issued on of the accused no.2/Company, namely, Shree Krishna Vanaspati Pvt Ltd. while deciding the revision petition and the respondent avoided the trial initiated against him and the accused company.
The respondent contended that the accused Company is the drawer of the cheque and the petitioner failed to make the accused Company a party to the complaint in the proceedings under Section 138 of the NI Act. It was contended that the Company was the necessary party and notice was not issued to the accused Company by law and the cheque was signed by the respondent, and the cheque issued to the petitioner bore the name of the accused Company as the account holder, being a separate entity from its members.
Justice Chandra Dhari Singh held that the liability under section 138 of the NI Act did not arise solely against the respondent even if he had signed the cheque. The court observed that the accused Company was made a party to the complaint case without being furnished a notice, without an opportunity to defend.
The Court did not find any error, illegality or impropriety in the impugned order dated 13th September 2017 passed by learned Additional Sessions Judge in Criminal Revision Petition No. 135/2017 and the petition got dismissed.
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