U/s 138 ni act adding of another accused during trial is permissible ?
Uday Kumar
(Querist) 12 January 2014
This query is : Resolved
I have filed a Criminal Case U/S 138 NI Act against Proprietor of the Company(All Though Legal Notice was sent to the Proprietor and Cheque Signatory as well) But in Complaint Cheque signatory was not made accused/party.
Can Trial Court Allow the Complainant to add Another accused/Cheque Signatory also as an Accused at subsequent stage of Trial ?
What would be effect of the Case on merit if Cheque Signatory is not make party to the Complaint
Devajyoti Barman
(Expert) 12 January 2014
Yes in certain cases court allows to add relevant party to be added as party to the case.
Advocate. Arunagiri
(Expert) 12 January 2014
Propreitor is the mandatory party to the 138 case.
You can add him by filing a separate petition for that.
Rajendra K Goyal
(Expert) 13 January 2014
Unable to understand proprietor of a company. Do you mean managing director or another official?
Can be added, consult to your lawyer.
T. Kalaiselvan, Advocate
(Expert) 14 January 2014
The authorised signatory in the cheque maybe a staff representing the company/proprietor. The case is against the proprietor and not against the signatory, however the signatory may be summoned to depose evidence in his capacity as employee of the company. There is no provision for amendment in criminal law but if required and proved vital another accused may be permitted to be included.
Advocate. Arunagiri
(Expert) 14 January 2014
I agree with Adv.Kalaiselvan, on the point, on the legal status of the employee / signatory.
malipeddi jaggarao
(Expert) 16 January 2014
For Company there will not be a proprietor.
In proprietorship concern, normally, the proprietor is the signatory.
In this case the accounts belongs to somebody and cheque signed by another.
Who is this "somebody" - company, partnership, proprietorship - should be made clear.
Who is this "another" - Director/Managing Director/Partner/proprietor/employee authorised to sign the cheques - should be made clear.
Then only any reply will be valid.
V R SHROFF
(Expert) 16 January 2014
APPLY TO COURT WITH GROUNDS TO SUPPORT UR APPLICATION
Hemant Agarwal
(Expert) 01 September 2014
CONTRARY to all the above, Introspect on the following:
1. Under section 138(b) of the N.I.Act, it is "Mandatory" to send "Notice of Demand" within 30 days of dishonour of cheque, TO ALL THE ACCUSED'S.
2. IF the notice u/s 138(b) is not delivered and acknowledged by the Accused (signatory of cheque) THEN such person CANNOT be prosecuted EVER, IRRESPECTIVE OF ANYTHING (Even using 319 CrPC).
THIS SIMPLY MEANS : NO NOTICE equals to NO ACCUSED, which in turn means NO PROSECUTION.
3. The concept of "Vicarious Liability" on the accused can be ENFORCED "ONLY" AFTER the accused has failed to honor the Notice u/s 138(b). NO NOTICE means NO Vicarious Liability.
4. In the case instant, since the dishonored "Cheque-Signatory" is not charged (aka no averment), the charge against the "proprietor" is lawfully NOT maintainable. (refer latest Supreme Court judgment in Anil Gupta vs Star India). Held: Proceedings CANNOT continue in absence of Cheque-Signatory.
CONCLUSION: Under N.I.Act, NO NEW ACCUSED can be added for above reasons.
Keep Smiling .... Hemant Agarwal
READ ARTICLES ON: http://hemantagarwal21.blogspot.in/?view=sidebar
T. Kalaiselvan, Advocate
(Expert) 03 September 2014
wonderful and useful information posted by expert Mr.Hemant, I appreciate him and thank him for the efforts for this useful info.
Advocate. Arunagiri
(Expert) 03 September 2014
Anil Gupta vs Star India.
In this case the SC had concluded that the company should be party to the criminal proceedings, only the director can not be arrayed as the director.
In case of company cheques, notice to the company is sufficient. it is not necessary to issue separate notice to the signatory or any other director.
Once the company is arrayed as the accused (notice is issued), any other officer (no notice is issued) as per the act can be arrayed as the accused.
Hemant Agarwal
(Expert) 03 September 2014
I-N-T-R-O-S-P-E-C-T, once again, this time more S-L-O-W-L-Y:
1. “Statutory Notice to "EVERY DIRECTOR" is Mandatory.
“B.Raman vs Shasun Chemicals”, (Hon. Madras High Court Bench)
2. TO fasten "Vicarious Liability", against EACH director, service of statutory notice u/s 138(b) is mandatory to EACH accused.
( Kamlesh Kumar Vs. State of Bihar - SC )
3. To prosecute any director, AVERMENT against EACH & EVERY director, in complaint is mandatory. (Averment in complaint is possible ONLY & ONLY "A-F-T-E-R" notice is served).
(National vs Harmeet Singh - SC),
(S.M.S. Pharmaceuticals vs Neeta Bhalla - SC)
4. A director in a company maybe a "nominee director" .OR. a "non-executive director", who are "not in-charge & responsible for conduct of company", (under Companies Act) and maybe "non-resident" directors. Unless notice is served, the director will not have any opportunity to rebut the notice with his say or to make payment under notice.
(K. Srikanth Singh vs North East - SC)
Keep Smiling .... Hemant Agarwal
READ ARTICLES ON: http://hemantagarwal21.blogspot.in/?view=sidebar
V R SHROFF
(Expert) 03 September 2014
ONLY PERSONS HAVING LEGAL LIABILITY TO PAY CAN BE CHARGES WITH// NOT STAFF
T. Kalaiselvan, Advocate
(Expert) 05 September 2014
agreed, legally liable debt is the criteria in the cheque bounce cases.
