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could not change complainant in 138 ni case


Is there any authority regarding or which says that we could not change complainant in 138 NI Case if first complainant resigned from bank?
 
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Retired employee.

There is no clarity.  In sec.138 cases the victim is always the payee who was cheated by and not received the legitimate amount due to him and given by a drawer through cheque, and the cheque got bounced due to inadequate funds, which were not paid even after notice. The complaint is always an individual and if represented by a company, there may be several authorized officials who can be substituted by filing application to the bank or summoning that individual even when he resigned if his presence is essential.

 
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Advocate

In S.R. Sukumar v. S. Sunaad Raghuram, (2015) 9 SCC 609, the Hon'ble Supreme Court relying on the aforesaid judgment, held, "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."

However ther is no correct procedures  or correct legal proposition laid down in relation to cheque bouncing cases.

In Aneeta Hada v. Godfather Travels and Tours Private Limited7, the point for determination before the Hon'ble Supreme Court was whether a complaint under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881 ("NI Act") was maintainable against a Director or Authorized signatory of a company, without joining the company as an accused? Answering the same in negative, the Hon'ble Supreme Court held that in terms of the provisions of Section 141 NI Act, commission of offence by the company is an express condition precedent to attract vicarious liability of another. As per the Hon'ble Supreme Court, "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." Clearly, the prosecution of other persons8 under Section 138 NI Act is permissible only when the Company is named as an accused in the complaint. Further, the Hon'ble Supreme Court in N. Harihara Krishnan v. J. Thomas9, has held that in the context of prosecution under Section 138 NI Act, the concept of taking cognizance of the offence but not the offender is not appropriate. As per the Hon'ble Court, the scheme of the prosecution in punishing under Section 138 NI Act "is different from the scheme of CrPC". Therefore, it was held that "[d]isclosure 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."


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Retired employee.

If my understanding is proper, the complainant is the Bank that might have secured a cheque towards some loan repayment (Consumer/housing) and the concerned officer who made a complaint might have resigned or got transferred.  In such cases, any person that is having POA to represent the Bank and bind the bank in his capacity can appear.  A formal application to the court enclosing copy of POA may be sufficient for the purpose.

 
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