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2024 DIGILAW 2429 (ALL)

Maya Rani Rao v. State Of U. P

2024-11-28

ARUN KUMAR SINGH DESHWAL

body2024
JUDGMENT : Arun Kumar Singh Deshwal, J. 1. Heard Sri Sushil Kr. Chaturvedi, learned counsel for the applicant and Sri Uday Bhan, learned A.G.A. for the State. 2. The instant application has been filed seeking quashing of the impugned order dated 10.9.2024 passed by Presiding Officer, Special Judge, N.I. Act, Agra in application dated 2.7.2024, under Section 319 Cr.P.C. in Complaint Case No. 2186 of 2017 (Maya Rani vs. Ram Autar), under Section 138 N.I. Act, P.S. Jagdishpura, District Agra. Further prayer is to summon the opposite party No.3/company for facing trial. 3. Facts giving rise to the present case are that a cheque dated 16.12.2016 for the amount of Rs.26,37,100/- was issued on behalf of the company M/s Anupam Omarion Infrastructure (India) Pvt. Ltd. by opposite party No.2 being its director as well as authorized signatory. That cheque was presented before the bank on 16.12.2016, but the same was returned on 8.3.2017 with the endorsement "fund insufficient", thereafter the applicant sent a notice to opposite party No.2 as well as the company (opposite party No.3) on 31.3.2017. However, despite expiry of 15 days from the date of receiving the notice, the cheque amount was neither paid by opposite party No.2 nor by opposite party No.3. Thereafter, the complaint was filed on 24.4.2017, impleading opposite party No.2 as proprietor of opposite party No.3. It is undisputed that respondent No.3 (company) was not arraigned as accused in the complaint. After perusal of the record, learned Magistrate took cognizance on 22.6.2017 and summon was issued to opposite party No.2. After conclusion of evidence of the applicant and an application under Section 319 Cr.P.C. was filed by the applicant on 2.7.2024 to summon opposite party No.3 on the ground that by mistake the opposite party No.3 could not be impleaded at the time of filing the complaint though the cheque in question was issued on behalf of the company. However, that application was rejected by the court below by impugned order dated 10.9.2024 which has been challenged in the present application. 4. Contention of learned counsel for the applicant is that the applicant is the complainant in the complaint in question and she could not implead the company but impleaded its proprietor at the time of filing the complaint in the year 2017. 4. Contention of learned counsel for the applicant is that the applicant is the complainant in the complaint in question and she could not implead the company but impleaded its proprietor at the time of filing the complaint in the year 2017. When this fact came into the knowledge of the applicant in the year 2024, then she filed an application under Section 319 Cr.P.C. to summon the company, namely, M/s Anupam Omarion Infrastructure (India) Pvt. Ltd. on the ground that by mistake it could not be impleaded as a party along with its proprietor and that application was rejected by the court below by the impugned order. It is further submitted that after bouncing of the cheque, issued on behalf of the company, though the applicant sent a demand notice to the company as well as its proprietor, but by mistake she could not implead the company as a party. Therefore, the court below erroneously rejected her application under Section 319 Cr.P.C. for summoning the company as additional accused. 5. Per contra, learned A.G.A. submitted that when the applicant has not impleaded the company on whose behalf the cheque in question was issued, then the complaint itself is defective in view of Section 141 N.I. Act as well as the law laid down by the Apex Court in the case of Aneeta Hada vs. M/S God Father Travels and Tours Pvt. Ltd. ; (2012) 5 SCC 661 . 6. After hearing submissions of learned counsel for the parties, a sole question arises herein whether the application under Section 319 Cr.P.C. is maintainable to summon the company for the offence of Section 138 N.I. Act after the expiry of limitation period, though in the complaint, company was not impleaded despite the fact that the cheque in question was issued on behalf of the company. 7. To decide the above question, it is pertinent to refer Section 138 , 141 and 142 N.I. Act which are being quoted as under:- " 138. 7. To decide the above question, it is pertinent to refer Section 138 , 141 and 142 N.I. Act which are being quoted as under:- " 138. Dishonour of cheque for insufficiency, etc., of funds in the account.—Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to 68[two] years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless— (a) the cheque has been presented to the bank within a period of six months* from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, 69[within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice. Explanation.—For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability. 141. Explanation.—For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability. 141. Offences by companies.—(1) If the person committing an offence under Section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence. Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this chapter. (2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.—For the purposes of this section,— (a) “company” means any body corporate and includes a firm or other association of individuals; and (b) “director”, in relation to a firm, means a partner in the firm. 142. Explanation.—For the purposes of this section,— (a) “company” means any body corporate and includes a firm or other association of individuals; and (b) “director”, in relation to a firm, means a partner in the firm. 142. Cognizance of offences.—71[(1)] Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),— (a) no court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138 : Provided that the cognizance of a complaint may be taken by the court after the prescribed period, if the complainant satisfies the court that he had sufficient cause for not making a complaint within such period. (c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138 . (2) The offence under Section 138 shall be inquired into and tried only by a court within whose local jurisdiction,— (a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or (b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated. Explanation.—For the purposes of clause (a), where a cheque is delivered for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account." 8. From the perusal of Section 138 N.I. Act, it is clear that for the prosecution of the drawer of a cheque on bouncing of the same following conditions must be satisfied:- (i) The cheque must be issued by the drawer for the account maintained by him with banker in discharge of any liability; (ii) The cheque has been presented before the bank during the period of its validity and the cheque has been returned by the bank as unpaid for the reason of insufficient fund in the account of the drawer to honour the cheque; (iii) On receiving the information from the bank about the dishonouring of the cheque, payee or holder in due course of the cheque sends a demand notice within 30 days in writing (which also includes through electronic means as per Section 4 of the Information Technology Act) to the drawer of the cheque to pay the cheque amount and; (iv) The drawer of the cheque fails to make payment of the cheque amount within 15 days of receiving the demand notice. 9. From the conjoint reading of Section 138 and 141 N.I. Act, it is clear, if the cheque is issued on behalf of the company/firm then primarily the company/firm should be prosecuted on fulfilling the condition mentioned under Section 138 N.I. Act and apart from the company, its officer or director who was incharge of and was responsible for the conduct of business of the company/firm may also be prosecuted vicariously. Therefore, for the prosecution of company/firm under Section 138 N.I. Act, it should be arraigned as prime accused in the complaint and unless the company/firm arraigned in the complaint, cognizance of offence under Section 142 N.I. Act for the offence under Section 138 N.I. Act cannot be taken. If the concerned court has mistakenly taken cognizance against the director of the company on the basis of the complaint in which the company/firm was not impleaded as accused, then such cognizance under Section 142 N.I. Act would be absolutely illegal as the proceeding cannot go on against the director, partner or employee of the company vicariously in absence of the company as the cognizance of the offence can be taken against the drawer of the cheque and in case of cheque is issued on behalf of the company the drawer of the cheque would be the company. 10. 10. The Apex Court in the case of Aneeta Hada (supra) observed that without impleading the company/firm, prosecution of its director is bad in the eyes of law. Paragraphs No. 39, 58 and 59 of the Aneeta Hada (supra) is quoted as under:- "39. The word “deemed” used in Section 141 of the Act applies to the company and the persons responsible for the acts of the company. It crystallises the corporate criminal liability and vicarious liability of a person who is in charge of the company. What averments should be required to make a person vicariously liable has been dealt with in S.M.S. Pharmaceuticals Ltd. [ (2005) 8 SCC 89 : 2005 SCC (Cri) 1975] In the said case, it has been opined that the criminal liability on account of dishonour of cheque primarily falls on the drawee (sic drawer) company and is extended to the officers of the company and as there is a specific provision extending the liability to the officers, the conditions incorporated in Section 141 are to be satisfied. 58. Applying the doctrine of strict construction, we are of the considered opinion that commission of offence by the company is an express condition precedent to attract the vicarious liability of others. Thus, the words “as well as the company” appearing in the section make it absolutely unmistakably clear that when the company can be prosecuted, then only the persons mentioned in the other categories could be vicariously liable for the offence subject to the averments in the petition and proof thereof. One cannot be oblivious of the fact that the company is a juristic person and it has its own respectability. If a finding is recorded against it, it would create a concavity in its reputation. There can be situations when the corporate reputation is affected when a Director is indicted. 59. In view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the drag- net on the touchstone of vicarious liability as the same has been stipulated in the provision itself. We say so on the basis of the ratio laid down in C.V. Parekh [ (1970) 3 SCC 491 : 1971 SCC (Cri) 97] which is a three-Judge Bench decision. The other categories of offenders can only be brought in the drag- net on the touchstone of vicarious liability as the same has been stipulated in the provision itself. We say so on the basis of the ratio laid down in C.V. Parekh [ (1970) 3 SCC 491 : 1971 SCC (Cri) 97] which is a three-Judge Bench decision. Thus, the view expressed in Sheoratan Agarwal [ (1984) 4 SCC 352 : 1984 SCC (Cri) 620] does not correctly lay down the law and, accordingly, is hereby overruled. The decision in Anil Hada [ (2000) 1 SCC 1 : 2001 SCC (Cri) 174] is overruled with the qualifier as stated in para 51. The decision in Modi Distillery [ (1987) 3 SCC 684 : 1987 SCC (Cri) 632] has to be treated to be restricted to its own facts as has been explained by us hereinabove." 11. The above ratio of Aneeta Hada (supra) was again reaffirmed and reiterated in the case of Dilip Hariramani vs. Bank of Baroda ; (2022) SCC OnLine SC 579 . In this judgement the Apex Court observed that the liability of director or partner of the company/firm is vicarious only because of fiction as per Section 141 N.I. Act but the primary liability is of the company/firm for commission of offence under Section 138 N.I. Act. Paragraph No.16 of Dilip Hariramani (supra) is quoted as under:- "16. The provisions of Section 141 impose vicarious liability by deeming fiction which presupposes and requires the commission of the offence by the company or firm. Therefore, unless the company or firm has committed the offence as a principal accused, the persons mentioned in sub-section (1) or (2) would not be liable and convicted as vicariously liable. Section 141 of the NI Act extends vicarious criminal liability to officers associated with the company or firm when one of the twin requirements of Section 141 has been satisfied, which person(s) then, by deeming fiction, is made vicariously liable and punished. However, such vicarious liability arises only when the company or firm commits the offence as the primary offender. This view has been subsequently followed in Sharad Kumar Sanghi v. Sangita Rane, Himanshu v. B. Shivamurthy, and Hindustan Unilever Limited v. State of Madhya Pradesh. However, such vicarious liability arises only when the company or firm commits the offence as the primary offender. This view has been subsequently followed in Sharad Kumar Sanghi v. Sangita Rane, Himanshu v. B. Shivamurthy, and Hindustan Unilever Limited v. State of Madhya Pradesh. The exception carved out in Aneeta Hada (supra), which applies when there is a legal bar for prosecuting a company or a firm, is not felicitous for the present case. No such plea or assertion is made by the respondent." 12. From the above mentioned legal position, it is clear that in case a cheque is issued on behalf of the company/firm then unless the company/firm is arrayed as an accused in the complaint, cognizance for the offence under Section 138 N.I. Act and subsequent proceeding is erroneous. Therefore, a question arises if a complaint is filed after dishonouring of the cheque issued by the director/officer/partner on behalf of the company/firm without impleading the company/firm, then whether this defect can be cured after taking cognizance on the basis of above complaint. The Apex Court in the case of Himanshu vs. B. Shivamurthy and another ; (2019) 3 SCC 797 observed that whether the cheque in question was issued on behalf of the company/firm and on getting dishonoured, the demand notice was given only to the director and not to the company, in that case if the complaint is filed against the director without impleading the company then at subsequent stage company cannot be permitted to be impleaded as accused because no cause of action arises in absence of demand notice to the company. Paragraph No.13 of the Himanshu (supra) is quoted as under:- "13. In the absence of the company being arraigned as an accused, a complaint against the appellant was therefore not maintainable. The appellant had signed the cheque as a Director of the company and for and on its behalf. Moreover, in the absence of a notice of demand being served on the company and without compliance with the proviso to Section 138 , the High Court was in error in holding that the company could now be arraigned as an accused." 13. Moreover, in the absence of a notice of demand being served on the company and without compliance with the proviso to Section 138 , the High Court was in error in holding that the company could now be arraigned as an accused." 13. From the perusal of the judgement in Himanshu (supra), it is clear that if all ingredients, including service of demand of notice under Section 138 N.I. Act for initiating the proceeding against the company, are fulfilled and there is satisfactory explanation of delay then impleadment of company in the complaint at subsequent stage is permissible or the fresh complaint may be filed by impleading the company on fulfilment of legal necessity including the explanation of delay (this view was also taken in the case of Jitendra Mangala vs. Stat of U.P and another. ; Application u/s 482 No. 6343 of 2024 ). 14. However, if the company is permitted to be impleaded on subsequent stage as accused then fresh cognizance order has to be passed because the cognizance on the complaint filed without impleading the company, is itself bad. Presumption of law that court takes cognizance of offence not cognizance of the offender is not applicable in the case of N.I. Act as the cognizance under the N.I. Act is person specific (drawer of the cheque). 15. So far as the applicability of the provision of Section 319 Cr.P.C. in the proceeding of N.I. Act is concerned, to decide this issue Section 319 Cr.P.C. is needed to be referred and same is quoted as under:- "319. Power to proceed against other persons appearing to be guilty of offence.—(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. (2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under sub-section (1) then— (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard; (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced." 16. From the perusal of Section 319 Cr.P.C., it is clear that this section would apply where it appears from the evidence on record that any person has committed any offence but is not an accused before the court. In case of proceeding under Section 138 N.I. Act a person can be said to have committed an offence only when being drawer of the cheque he fails to make the payment of the dishonoured cheque issued by him despite the expiry of 15 days from the date of receiving the demand notice. Therefore, even if the cheque issued by the company got bounced but notice was not given to the company then despite the evidence on record that bounced cheque was issued by the company, it cannot be said that the company has committed any offence. In such cases, the company cannot be impleaded or summoned. 17. Therefore, even if the cheque issued by the company got bounced but notice was not given to the company then despite the evidence on record that bounced cheque was issued by the company, it cannot be said that the company has committed any offence. In such cases, the company cannot be impleaded or summoned. 17. However, in those cases where apart from fulfilling the other conditions of Section 138 N.I. Act, demand notice was also issued to the company on bouncing of the cheque, then even though the company was not accused before the court even then from the record it can be presumed that the company has committed the offence, therefore, the company can be permitted to be impleaded as an accused but on the applicability of Section 319 Cr.P.C. there is a presumption under Section 319 (4)(b) Cr.P.C. that if the court proceeds against such person then it would be deemed that such person was accused on the date when the cognizance was taken but if the cognizance under Section 142 N.I. Act is taken without impleading the company that itself is erroneous and the same cannot be declared valid retrospectively in the garb of Section 319 Cr.P.C. From the perusal of Section 142 (1)(b) Cr.P.C., it is clear that cognizance of the offence under Section 138 N.I. Act is taken against the accused mentioned in the complaint, therefore, when the company itself was not a party at the time of taking cognizance then cognizance cannot be said to be valid under Section 142 N.I. Act. Therefore, if on fulfilling the other condition, the company is permitted to be impleaded as a party then the court has to take fresh cognizance of the offence against the company as per Section 142 N.I. Act. Therefore, Section 319 Cr.P.C. cannot be strictly applied in the proceeding of Section 138 N.I. Act. 18. It is a settled legal proposition that if initial action is not in consonance with law, all subsequent and consequential proceedings would fall through for the reason that illegality strikes at the root of the order. In such a fact-situation, the legal maxim “sublato fundamento cadit opus” meaning thereby that foundation being removed, structure/work falls, comes into play and applies on all scores in the present case. 19. In such a fact-situation, the legal maxim “sublato fundamento cadit opus” meaning thereby that foundation being removed, structure/work falls, comes into play and applies on all scores in the present case. 19. Hon'ble Apex Court in the case of N. Harihara Krishnan vs. J. Thomas ; (2018) 13 SCC 663 has observed that invoking Section 319 Cr.P.C. as a device to initiate proceeding against the company beyond the period of limitation is not permissible. Paragraphs No. 26, 27, 28, 29 of N. Harihara Krishnan (supra) are being quoted as under:- "26. The scheme of the prosecution in punishing under Section 138 of the Act is different from the scheme of CrPC. Section 138 creates an offence and prescribes punishment. No procedure for the investigation of the offence is contemplated. The prosecution is initiated on the basis of a written complaint made by the payee of a cheque. Obviously such complaints must contain the factual allegations constituting each of the ingredients of the offence under Section 138 . Those ingredients are : (1) that a person drew a cheque on an account maintained by him with the banker; (2) that such a cheque when presented to the bank is returned by the bank unpaid; (3) that such a cheque was presented to the bank within a period of six months from the date it was drawn or within the period of its validity whichever is earlier; (4) that the payee demanded in writing from the drawer of the cheque the payment of the amount of money due under the cheque to payee; and (5) such a notice of payment is made within a period of 30 days from the date of the receipt of the information by the payee from the bank regarding the return of the cheque as unpaid. It is obvious from the scheme of Section 138 that each one of the ingredients flows from a document which evidences the existence of such an ingredient. The only other ingredient which is required to be proved to establish the commission of an offence under Section 138 is that in spite of the demand notice referred to above, the drawer of the cheque failed to make the payment within a period of 15 days from the date of the receipt of the demand. The only other ingredient which is required to be proved to establish the commission of an offence under Section 138 is that in spite of the demand notice referred to above, the drawer of the cheque failed to make the payment within a period of 15 days from the date of the receipt of the demand. A fact which the complainant can only assert but not prove, the burden would essentially be on the drawer of the cheque to prove that he had in fact made the payment pursuant to the demand. 27. By the nature of the offence under Section 138 of the Act, the first ingredient constituting the offence is the fact that a person drew a cheque. The identity of the drawer of the cheque is necessarily required to be known to the complainant (payee) and needs investigation and would not normally be in dispute unless the person who is alleged to have drawn a cheque disputes that very fact. The other facts required to be proved for securing the punishment of the person who drew a cheque that eventually got dishonoured is that the payee of the cheque did in fact comply with each one of the steps contemplated under Section 138 of the Act before initiating prosecution. Because it is already held by this Court that failure to comply with any one of the steps contemplated under Section 138 would not provide “cause of action for prosecution”. Therefore, in the context of a prosecution under Section 138 , the concept of taking cognizance of the offence but not the offender is not appropriate. Unless the complaint contains all the necessary factual allegations constituting each of the ingredients of the offence under Section 138 , the Court cannot take cognizance of the offence. Disclosure of the name of the person drawing the cheque is one of the factual allegations which a complaint is required to contain. Otherwise in the absence of any authority of law to investigate the offence under Section 138 , there would be no person against whom a court can proceed. There cannot be a prosecution without an accused. The offence under Section 138 is person specific. Therefore, Parliament declared under Section 142 that the provisions dealing with taking cognizance contained in the CrPC should give way to the procedure prescribed under Section 142 . There cannot be a prosecution without an accused. The offence under Section 138 is person specific. Therefore, Parliament declared under Section 142 that the provisions dealing with taking cognizance contained in the CrPC should give way to the procedure prescribed under Section 142 . Hence the opening of non obstante clause under Section 142 . It must also be remembered that Section 142 does not either contemplate a report to the police or authorise the Court taking cognizance to direct the police to investigate into the complaint." 20. The issue of maintainability of the application under Section 319 Cr.P.C. was also considered by the Gujarat High Court in the case of Somesh Sarjivan Jain vs. State of Gujarat and others ; Special Criminal Application No. 1790 of 2009 wherein it is observed that the application under Section 319 Cr.P.C. is not maintainable to arraign the accused subsequently in the complaint. Paragraph No.7.3 of the Somesh Sarjivan Jain (supra) is quoted as under:- “ 7.03. In the present case, as stated above, admittedly no notice has been issued and served upon the petitioner as required under section 138 of the Negotiable Instruments Act and therefore, cause of action for filing the complaint against the petitioner for the offence under section 138 of the Negotiable Instruments Act does not arise. Therefore, as such in absence of any statutory notice upon the petitioner even as proprietor of Jain Electronics, a Proprietorship Firm - drawer of the cheque, petitioner cannot be prosecuted for the offence under section 138 of the Negotiable Instruments Act and therefore, in absence of such notice as required under section 138 of the Negotiable Instruments Act and any eventuality as contemplated under Clause (C) of provision to section 138 of the Negotiable Instruments Act, no complaint can be filed against petitioner for the offence under section 138 of the Negotiable Instruments Act and even the learned Magistrate cannot take cognizance of the offence against the petitioner for the offence under section 138 of the Negotiable Instruments Act. Under the circumstances, petitioner cannot be arraigned as accused subsequently for the offence under section 138 of the Negotiable Instruments Act in exercise of the powers under section 319 of the Code of Criminal Procedure. Under the circumstances, petitioner cannot be arraigned as accused subsequently for the offence under section 138 of the Negotiable Instruments Act in exercise of the powers under section 319 of the Code of Criminal Procedure. By exercising powers under section 319 of the Code of Criminal Procedure arraigning the accused subsequently, complaint winch otherwise was not maintainable against the petitioner for the offence punishable under section 138 of the Negotiable Instruments Act, cannot be made maintainable. Under the circumstances, nobody can be arraigned as accused by the learned Magistrate in exercise of the powers under section 319 of the the Code of Criminal Procedure in a complaint for the offence under section 138 of the Negotiable Instruments Act which otherwise is not maintainable.” 21. Gujarat High Court again considered the issue of maintainability of the application under Section 319 Cr.P.C. in the proceeding under Section 138 N.I. Act in the case of Oanali Ismailji Sadikot vs. State of Gujarat and another ; Special Criminal Application (Quashing) No. 4536 of 2015 . In that case, Hon’ble Justice J.B. Pardiwala, after discussing in detail the object of Section 319 Cr.P.C., observed that the application under Section 319 Cr.P.C. is not maintainable in the proceeding of N.I. Act. Paragraphs No. 72, 73 and 76 Oanali Ismailji Sadikot (supra) are quoted as under:- “ 72 . I am of the view that by virtue of a legal fiction, it cannot be said that on the date of filing of the complaint, the Court was justified in taking cognizance and issue process against the partners in the absence of the legal entity and no fault could be found so far as the legality and validity of the cognizance is concerned. The legal fiction is altogether for a different purpose and it should not be brought in aid of curing a serious defect or infirmity in the complaint or the order taking cognizance. The legal fiction is altogether for a different purpose and it should not be brought in aid of curing a serious defect or infirmity in the complaint or the order taking cognizance. When Sub-section (4)(b) of Section 319 of the Code says that it will be presumed that the newly added person had been an accused person when the Court took cognizance of the complaint upon which the inquiry or trial was commenced, the same indicates that the Court is not empowered to take cognizance of any fresh offence if any accused is impleaded by invoking Section 319 and the newly added accused could be tried only for the offence already taken cognizance against the other accused, 73 . The policy of the Code is that the offence can be taken cognizance of once only and not repeatedly upon discovery of further particulars. In a given case, the complainant may not even know the names and other particulars of the offenders, and it would, therefore, be sufficient for him to lodge a complaint making the persons who are known as the accused. When such a trial proceeds against the known accused, if the evidence led in trial discloses offences committed by other persons who could be tried along with the accused, then there need not be a fresh complaint and fresh order of cognizance against those persons. I reiterate that the complaint was liable to be dismissed on the very first day of its presentation and no process could have been issued against the partners in the absence of the partnership firm. 76 . In view of the aforesaid discussion, I hold that the application under Section 319 of the Cr.P.C. is not maintainable, and the Court below rightly rejected the same. The third question is answered accordingly.” 22. Though it is clear from the legal position discussed above that application under Section 319 Cr.P.C. is not maintainable but a question arises whether the impleadment is permissible in certain circumstances despite the fact, there is no specific provision in Cr.P.C. (or B.N.S.S) for impleadment. 23. The Apex Court in the case of S.R. Sukumar vs. S. Sunaad Raghuram ; (2015) 9 SCC 609 observed in paragraphs No. 17 and 18 that in certain circumstances amendment in complaint to correct the curable infirmities is permissible. Paragraphs No. 17 & 18 are quoted as under:- “17. 23. The Apex Court in the case of S.R. Sukumar vs. S. Sunaad Raghuram ; (2015) 9 SCC 609 observed in paragraphs No. 17 and 18 that in certain circumstances amendment in complaint to correct the curable infirmities is permissible. Paragraphs No. 17 & 18 are quoted as under:- “17. Insofar as merits of the contention regarding allowing of amendment application, it is true that there is no specific provision in the Code to amend either a complaint or a petition filed under the provisions of the Code, but the Courts have held that the petitions seeking such amendment to correct curable infirmities can be allowed even in respect of complaints. In U.P. Pollution Control Board v. Modi Distillery, 1995 (SLT Soft) 1194 : (1987) 3 SCC 684 , wherein the name of the company was wrongly mentioned in the complaint that is, instead of Modi Industries Ltd. the name of the company was mentioned as Modi Distillery and the name was sought to be amended. In such factual background, this Court has held as follows:— “…The learned Single Judge has focussed his attention only on the [pic]technical flaw in the complaint and has failed to comprehend that the flaw had occurred due to the recalcitrant attitude of Modi Distillery and furthermore the infirmity is one which could be easily removed by having the matter remitted to the Chief Judicial Magistrate with a direction to call upon the appellant to make the formal amendments to the averments contained in para 2 of the complaint so as to make the controlling company of the industrial unit figure as the concerned accused in the complaint. All that has to be done is the making of a formal application for amendment by the appellant for leave to amend by substituting the name of Modi Industries Limited, the company owning the industrial unit, in place of Modi Distillery. Furthermore, the legal infirmity is of such a nature which could be easily cured…” 18. What is discernible from the U.P. Pollution Control Board's case is that easily curable legal infirmity could be cured by means of a formal application for amendment. Furthermore, the legal infirmity is of such a nature which could be easily cured…” 18. What is discernible from the U.P. Pollution Control Board's case is that easily curable legal infirmity could be cured by means of a formal application for amendment. If the amendment sought to be made relates to a simple infirmity which is curable by means of a formal amendment and by allowing such amendment, no prejudice could be caused to the other side, notwithstanding the fact that there is no enabling provision in the Code for entertaining such amendment, the Court may permit such an amendment to be made. On the contrary, if the amendment sought to be made in the complaint does not relate either to a curable infirmity or the same cannot be corrected by a formal amendment or if there is likelihood of prejudice to the other side, then the Court shall not allow such amendment in the complaint.” 24. In the proceeding of Section 138 N.I. Act if company is not impleaded at the time of filing complaint though cheque was issued by company, then in case of fulfilling all conditions of Section 138 N.I. Act, including issuance of demand notice, if there is satisfactory explanation of delay, then impleadment of company would be a curable defect. Hence amendment may be allowed to implead the company 25. From the analysis and the legal position discussed above, it is clear that if the proceeding under Section 138 N.I. Act is initiated on bouncing of the cheque issued on behalf of the company, without impleading the company then at post cognizance stage company can be permitted to be impleaded if apart from fulfilling other condition of Section 138 N.I. Act, a demand notice was also sent to the company within the prescribed period subject to the condition that the delay has been properly explained as required under the proviso of Section 142 (1)(b) of N.I. Act. 26. In view of the above analysis this Court also holds that application under Section 319 Cr.P.C. is not maintainable in the proceeding of Section 138 N.I. Act. However, impleadment application in the form of amendment is maintainable in such proceeding on fulfilling the conditions, mentioned in earlier paragraph, despite the fact that there is no specific provision of impleadment in Cr.P.C. or N.I. Act. 27. However, impleadment application in the form of amendment is maintainable in such proceeding on fulfilling the conditions, mentioned in earlier paragraph, despite the fact that there is no specific provision of impleadment in Cr.P.C. or N.I. Act. 27. So far as the judgement of the coordinate Bench of this Court in Usher Agro Ltd. vs. State of U.P. and another ; (2018) 3 JIC 225 (All), relied upon by the counsel for the applicant is concerned, in that case applicant has prayed for impleadment and to summon the company but in the present case applicant has not prayed for impleadment of the company. Additionally, facts in the case of the Usher Agro Ltd. (supra) are different from the facts of the present case, therefore, same will not help the applicant. This Court respectfully submits that the coordinate Bench while passing the order in Usher Agro Ltd. (supra) did not take into account the observation of N. Harihara Krishnan (supra) that an application under Section 319 Cr.P.C. cannot be permitted to initiate time barred proceeding. 28. Coming back to the fact of the present case, it is clear that the cheque in question was issued on behalf of the company M/s Anupam Omarion Infrastructure (India) Pvt. Ltd. and on bouncing of the cheque the demand notice dated 31.3.2017 was issued to its signatory director as well as company but the company failed to pay the cheque amount therefore on the date of filing of the complaint cause of action was also arisen against the company but the company was not impleaded even then the company can be permitted to be impleaded as party if delay is satisfactorily explained for not impleading the company. However, in the present case in the application under Section 319 Cr.P.C. there is no sufficient explanation of the delay though the applicant was well aware that the cheque in question was issued on behalf of the company and he himself sent the demand notice to the company. Therefore, the delay in impleading the company was not properly explained. Therefore on the date of filing the application under Section 319 Cr.P.C. which could be termed as an impleadment application, cognizance against the company was time-barred. Therefore, in the garb of an application under Section 319 Cr.P.C. defect of non-impleading the company cannot be cured despite being time-barred. Therefore, the delay in impleading the company was not properly explained. Therefore on the date of filing the application under Section 319 Cr.P.C. which could be termed as an impleadment application, cognizance against the company was time-barred. Therefore, in the garb of an application under Section 319 Cr.P.C. defect of non-impleading the company cannot be cured despite being time-barred. Even otherwise, there is no separate application or prayer in the application under Section 319 Cr.P.C. to implead the company as a party, therefore, an application under Section 319 Cr.P.C. itself is not maintainable. 29. In view of the above fact, this Court does not find any illegality in the impugned order by which the application of the applicant under Section 319 Cr.P.C. was rejected. Accordingly, the application is dismissed Order.