JUDGMENT A.S. Supehia, J. Rule. Learned advocates appearing on behalf of the respondents waive service of notice of rule on behalf of the respective respondents. By way of the present writ application, the applicants seek quashing of Criminal Complaint No. 43307 of 2016 pending before the court of Chief Judicial Magistrate, Vadodara, for the offence punishable under section 138 of the Negotiable Instruments Act, 1881 (the N.I. Act) as well as all further and subsequent proceedings pursuant thereto filed by respondent No.2 original complainant by exercising powers under section 482 of the Code of Criminal Procedure, 1974. 2. The facts of the case as mentioned in the memo of the application are as under: 2.1 Applicant No.1 met the complainant at a community function and convinced her to invest money in his Company viz. Vyogiswami Financial Consultants Limited (for short 'the Company') to get good returns. Accordingly, the complainant initially invested Rs.6,00,000/-, for which the applicants have issued a fixed deposit receipt with a promise to return 18% thereon per year. Again, the complainant invested another Rs.6,00,000/- in cash. As soon as the maturity period came, the complainant approached the applicants for her return when she was informed by the applicants that it would not be possible to give the interest but the principal amount will be returned and for that three cheques were issued in favour of the complainant - (i) cheque No.000196 dated 13.02.2016 for Rs.6,00,000/- of HDFC Bank, Vadodara; (ii) cheque No.506664 dated 13.02.2016 for Rs.4,00,000/- of Allahabad Bank, Vadodara; AND (iii) cheque No. 506666 dated 13.02.2016 for Rs.2,00,000/- of Allahabad Bank, Vadodara, all three cheques bear the signatures of both the applicants. Thereafter, the complainant presented the said cheques in her bank, out of which only one cheque of Rs.2,00,000/- was cleared and others were dishonoured and returned with the endorsement "insufficient funds". 2.2 Accordingly, respondent No.2 has filed the impugned complaint against the applicants, which is pending before the court of Chief Judicial Magistrate, Vadodara, wherein summons have been served upon the applicants and, therefore, they appeared before the court below. The complainant is examined-in-chief and he has admitted that she has not joined the Company as an accused in the impugned complaint. 3. The complainant is examined-in-chief and he has admitted that she has not joined the Company as an accused in the impugned complaint. 3. At the outset, the learned advocate for the applicants submitted that the impugned complaint is not maintainable for the reason that the Company is not joined/ impleaded as a party to the present proceedings, which is the mandatory requirement as per various decisions of the Apex Court as well as of this court. Reliance was placed upon the provisions of section 138 read with section 141 of the N.I. Act as well as the judgements rendered by the Apex Court in the case of Aneeta Hada Vs. M/s. Godfather Travels and Tours Private Limited, (2012) AIR SC 2795 and in the case of Kiritbhai Patel Vs. State of Gujarat, 2016 JX(Guj) 61 and it was submitted that the impugned criminal complaint as well as all the subsequent proceedings arising therefrom may be quashed. 4. In response, the learned advocate Mr. I.H. Syed appearing for the respondent no.2 submitted that the applicants in the name and title of Vyogiswami Financial Consultants Limited had i.e. the Company had extracted the money of the complainant by eye-catching offer of 18% interest with short maturity period. It was submitted that the bank account number mentioned in the Share Application Form being of the Allahabad Bank, Vadodara, i.e. A/c. No.50067399742 is not in the name of the Company and is a joint account in the names of the applicants, which itself shows malice of the applicants. It was further submitted that the Company has stopped its operation since 31.03.2011 and hence, it has not furnished any financial statements to the Ministry of Corporate Affairs from 31.03.2011 and hence, the said act of the Directors of the Company in not furnishing the returns for three consecutive financial years makes the Company defaulter and its Directors as disqualified with immediate effect. In such circumstances, the acts done post dis-operation of the Company can be presumed to have been done by the Directors of the Company and, therefore, for all such acts the Directors in personal capacity shall be accountable for the action done without any good faith. 4.1 Learned advocate for respondent No.2 further submitted that cheque bearing No.506664 issued in favour of respondent No.2-complainant is signed by the applicants in their personal capacity. 4.1 Learned advocate for respondent No.2 further submitted that cheque bearing No.506664 issued in favour of respondent No.2-complainant is signed by the applicants in their personal capacity. It was submitted that the applicants have maliciously shown bank A/c. No.50067399742 being of the Allahabad Bank, Vadodara in the Share Application Form in the name of the Company, whereas the disputed cheque shows that the same is the joint bank account in the names of the applicants. 4.2 Learned advocate for respondent No.2 further submitted that the applicants are the Directors in default of the Company. It was submitted that the Company has ceased to operate since 2011 and has not filed the income tax returns since 2011 and hence, the Company is "struck off" as per the provisions of the Companies Act, 1956 for non-filing of the annual returns for three consecutive years and the Directors of the Company are disqualified as per section 274(1)(g) of the Companies Act. It was submitted that the cheques issued by the applicants in their personal capacity and in the capacity of the Directors of the Company and both of them have signed and drawn on 13.02.2016 i.e. five years after their disqualification. Hence, it was submitted that the corporate veil should be lifted for the Directors of the Company to bear the criminal liability for the acts done under the guise of the title and the name of the Company. 4.3 Learned advocate for respondent No.2 submitted that the application for discharge was preferred by the applicants on the same ground that the Company is not joined as a party to the proceedings. It was submitted that vide order dated 11.09.2017 the discharge application below application Exh.35 moved by the applicants was rejected by Chief Judicial Magistrate, Vadodara, which order has not been challenged by the applicants and, therefore, the same has attained finality and hence, on this ground also, the present writ application deserves to be rejected with costs. 5. In rejoinder, the learned advocate for the applicants submitted that both the cheques in question are issued from the account of the Company. It was submitted that cheque of Rs.6,00,000/-, was issued by the applicants on behalf of the Company as a security to the complainant against her deposit of Rs.6,00,000/-. 5. In rejoinder, the learned advocate for the applicants submitted that both the cheques in question are issued from the account of the Company. It was submitted that cheque of Rs.6,00,000/-, was issued by the applicants on behalf of the Company as a security to the complainant against her deposit of Rs.6,00,000/-. However, the complainant demanded her amount back before maturity and, therefore, it was resolved by the Company that two fresh cheques of Rs.4,00,000/- and Rs.2,00,000/- each totaling to Rs.6,00,000/- was to be issued from the account of the Company, which was maintained in the Allahabad Bank and the security cheque of Rs.6,00,000/- without date was to be taken back. However, the complainant did not return that cheque of Rs.6,00,000/- and even after receiving the fresh cheques of Rs.4,00,000/- and Rs.2,00,000/-. It was submitted that the complainant by putting the dates of these two cheques had presented the same in the bank. It was submitted that out of these three cheques, cheque of Rs.2,00,000/- has been cleared. 5.1 Learned advocate for the applicants submitted that an absolutely false averments have been made by respondent No.2 in her affidavit-in-reply that the Company is a defaulter and is not in operation since 2011 and as per section 274(1)(g) of the Companies Act, the applicants are disqualified and hence, any act done under the guise of the Company through the applicants is illegal and invalid and the applicants shall personally stand liable for the dishonour of the cheques issued after the date of disqualification of the Directors of the Company. It was submitted that this statement of respondent No.2 is absolutely false and incorrect. It was submitted that at the relevant point of time when the cheques were issued, the applicants were not disqualified as the Directors. It was submitted that in fact the applicants are appointed as the Directors of the Company in 2011. It was submitted that the complainant is misreading and misinterpreting the documents annexed by herself with her affidavit-in-reply. It was submitted that the relevant documents annexed to the writ application shows that the Company was active since 2018 and the status is produced by respondent No.2 herself on 09.01.2018. It was further submitted that when the cheques got dishonoured, there was no disqualification of the Directors and the Company was active. It was submitted that the relevant documents annexed to the writ application shows that the Company was active since 2018 and the status is produced by respondent No.2 herself on 09.01.2018. It was further submitted that when the cheques got dishonoured, there was no disqualification of the Directors and the Company was active. It was submitted that from the perusal of the documents it is revealed that the contention of the disqualification of the Directors of the Company is absolutely false and contrary to the record. 6. Learned Advocate Mr. Syed for the respondent no.2, in support of his contention has placed reliance on the decision of the Apex Court in the case of National Small Industries Corporation Limited vs. Harmeet Singh Paintal & Anr., (2010) 2 GLH 766. Reliance is also placed on the decision of the Apex Court in the case of Mainuddin Abdul Sattar Shaikh Vs. Vijay D. Salvi, (2015) 9 SCC 622 for the proposition of law that the signatory of the cheque shall be liable in personam and inclusion of name of the company as a party is not required. 7. The learned Additional Public Prosecutor for the respondent-State has maintained the submissions advanced by learned Advocate Mr. Syed. 8. Heard the learned advocates appearing on behalf of the respective parties at length and perused the papers on record of the writ application. 9. Since there was a dispute raised by the learned advocates for the respective parties regarding the status of the Company, this court, in the order dated 17.12.2018, recorded the statement of the investigating officer that the Company was in existence till August 2018, however, the same was disputed by the learned advocate appearing on behalf of respondent No.2. It was submitted that the actual status of the Company can only be verified by the Registrar of Companies (RoC), Ahmedabad and hence, this court had asked the RoC to file an affidavit/report clarifying about the status of the Company and its directors. It was further observed that if it is established that the report of the RoC, Ahmedabad is in consonance with the investigating officer, respondent No.2 shall pay cost of Rs.25,000/-. 10. It was further observed that if it is established that the report of the RoC, Ahmedabad is in consonance with the investigating officer, respondent No.2 shall pay cost of Rs.25,000/-. 10. Pursuant to the aforesaid order the RoC filed a comprehensive report dated 07.01.2019, wherein it is submitted that the present status of the Company is "struck off" since the Company has violated the provisions of the Companies Act, more particularly section 137(1) thereof since they had not filed any financial statements or balance-sheet or annual report. In Paragraph No.9 of the report, it is specifically stated that the RoC, Gujarat issued notices under section 248 of the Companies Act, 2013 to the Company on 09.05.2018 and 10.05.2018. However, the same were not responded to by the Company/ Directors and hence, the RoC, Gujarat had issued a final notice under section 248(5) of the Companies Act on 14.08.2018 and the same was also published in the Official Gazette in the Government of India in due course of time. 11. The Registrar of Companies was personally present before this court. Learned Assistant Solicitor General of India Mr. Devang Vyas, on instructions of the RoC, has submitted that the Company can be said to be in existence till August, 2018 when the final notice under section 248(5) of the Companies Act was issued. Thus, the statement of the investigating officer recorded by this court in the order dated 17.12.2018 stands vindicated by the report of the RoC that the Company was in existence till August, 2018. 12. The applicants have issued the cheques as mentioned in the statement below : Sr. No. Bank Name Ch. No. Date Amount (lacs) 1. HDFC Bank, Vadodara. 000196 13.02.2016 6,00,000 2. Allahabad Bank, Vadodara 506664 13.02.2016 4,00,000 3. Allahabad Bank, Vadodara 506666 13.02.2016 2,00,000 TOTAL 12,00,000/- 13. The upshot of the aforesaid observations is that, when the cheques Nos.000196 and 506664 were issued on 13.02.2016 and at the time of filing the impugned complaint i.e. on 20.05.2016 before the court of Chief Judicial Magistrate, Vadodara, the Company was very much in existence. The Apex Court in the case of Aneeta Hada (supra) while examining the provisions of section 138 read with section 141 of the N.I. Act has held that a complaint is not maintainable if the company is not joined / impleaded as a party to the proceedings. The Apex Court in the case of Aneeta Hada (supra) while examining the provisions of section 138 read with section 141 of the N.I. Act has held that a complaint is not maintainable if the company is not joined / impleaded as a party to the proceedings. Arraigning of the company as an accused is imperative for maintaining the prosecution under section 141 of the N.I. Act, failing which the complaint for the offence under the same deserves to be quashed and set aside. It is an undisputed fact that in the present case the Company is not impleaded as an accused to the impugned complaint. 14. As regards Cheque No.000196 of Rs.6,00,000/- from the bank account of the Company in the HDFC Bank is concerned, the same bears the seal/stamp of the Company and the applicants have signed the same in the capacity of the Directors of the Company. 15. Now, I shall endeavor to deal with the contention raised by the respondent no.2 that Cheque No.506664 of Rs.4,00,000/- is not issued by the applicants on behalf of the Company and the same is issued by the applicants in their individual capacity as it bears the signatures of the applicants, without having the seal or stamp of the Company. 16. It is pertinent to note that Cheque No.506666 of Rs.2,00,000/- was issued from the account of the Company of the Allahabad Bank, which was cleared from the account of the Company. The statement of account of the Company of the Allahabad Bank (at Page 76) clearly depicts that A/c. No.50067399742 is in the name of the Company. The photocopy of Cheque No.506664 of Rs.4,00,000/- issued on 13.02.2016, which was dishonoured, reveals that the same also pertains to the same bank account of the Company being No.50067399742 of the Allahabad Bank. Thus, indubitably, it is established that both cheques of Rs.2,00,000/- and Rs.4,00,000/- respectively were issued from the bank A/c. No.50067399742 of the Allahabad Bank. The complainant was aware that both cheques No.506664 of Rs.4,00,000/- and No.506666 of Rs.2,00,000/- were issued from the same account number held by the Company in the Allahabad Bank. The cheque of Rs.2,00,000/- was cleared, whereas the cheque of Rs.4,00,000/- was dishonoured. The complainant was aware that both cheques No.506664 of Rs.4,00,000/- and No.506666 of Rs.2,00,000/- were issued from the same account number held by the Company in the Allahabad Bank. The cheque of Rs.2,00,000/- was cleared, whereas the cheque of Rs.4,00,000/- was dishonoured. Thus, merely because Cheque no.506664 does not bear the seal or stamp of the Company, and the same only bears the signatures of the applicants, it cannot be presumed that the cheque is issued from the personal bank account of the applicants in their personal capacity in wake of the fact that the bank account is in the name of the Company. Thus, once it is established that the cheque, which is dishonoured, is issued from the bank account of the Company, then, as per the law enunciated by the Apex Court in the case of Aneeta Hada (supra), the impugned complaint is required to be quashed and set aside since it was imperative to arraign the Company as an accused to the impugned complaint for maintaining the prosecution under section 141 of the N.I. Act. 17. The decision of this court relied upon by the learned advocate appearing on behalf of respondent No.2 in the case of Dipendra G. Choksi & Anr. Vs. Dipal Chimanlal Patel, (1997) 2 GLR 1191 cannot rescue the respondent No.2 since the same does not deal with the issue involved in the present writ application. The reliance placed upon the decision of the Apex Court in the case of Mainuddin Abdul Sattar Shaikh (supra) also will not help the respondent No.2 since in the said case before the Apex Court the cheque was drawn by the Managing Director of the Company in his personal capacity. 18. In the present case, as noted hereinabove, all the cheques are issued in the name of the Company, except Cheque No.506664 of Rs.4,00,000/-. The same bears the signatures of applicants No.1 and 2, however, it is issued from the bank account of the Company and not from the personal account of applicants No.1 and 2. 19. In view of the aforesaid discussion and factual scenario, in the considered opinion of this court, the impugned Criminal Complaint No.43307 of 2016 pending before the court of Chief Judicial Magistrate, Vadodara as well as all consequential and subsequent proceedings arising therefrom are quashed and set aside. Ordered accordingly. 20. The writ application is allowed as above. 19. In view of the aforesaid discussion and factual scenario, in the considered opinion of this court, the impugned Criminal Complaint No.43307 of 2016 pending before the court of Chief Judicial Magistrate, Vadodara as well as all consequential and subsequent proceedings arising therefrom are quashed and set aside. Ordered accordingly. 20. The writ application is allowed as above. RULE is made absolute. 21. As noted hereinabove, vide order dated 17.12.2018 this court has clarified that if the report of the Registrar of Companies, Ahmedabad is in consonance with the statement of the investigating officer, the respondent No.2 shall pay cost of Rs.25,000/-. Accordingly, respondent No.2 shall pay cost of Rs.25,000/- to the RoC, Ahmedabad forthwith.