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Ashish Singla 098140 76600 (Cheque Victim's Lawyer. LUDHIANA (PB))     30 January 2014

Sec. 319 crpc

Hi Experts,

In one case complainant made out party only to authorized signatory of proprietorship firm. That accused proved clearly in Court that he is only mandate holder of that firm and nothing to do with that why cheque has been issued by his principal in the favor of complainant. Court convinced and almost to acquit him.

Now after final arguments the complainant filed a application u/s 319 of CrPc to make the original proprietor as additional accused.

Is it possible ? if no than pl give some law.



 9 Replies

LAXMINARAYAN - Sr Advocate. ( solve problems in criminal cases. lawproblems@gmail.com)     31 January 2014

Signatory of the cheque is also liable even if the proprietor is not made party.


Similarly powers u/s 319 are vide and any body can be added as party.



Biswanath Roy (Advocate)     01 February 2014


R Trivedi (advocate.dma@gmail.com)     01 February 2014

In case of proprietorship firm there cannot be two natural accused (more than 1), simply because S.141 is not applicable on proprietorship firm. 


Now the point is the mandate holder, can be an employee, or a relative, or even two joint signatories with authority from proprietor, these people cannot be made accused as per reasons above and also account is of proprietor not of these people. 


Coming to the second question, in CPC, there is a provision, that if plaintiff  makes mistake (or ignorant) about constitution of the respondent firm, then it is on respondent to come forward and state the exact nature. But in criminal under S.138 the offense is not when cheque dishonors, but it is when notice is given and no payment made. So I am sure complainant will not be able to prove that real proprietor indeed received the notice. If the prop firm is also made accused (which itself is non maintainable) then it can be argued by applicant in his favor. Yes, power with the court is there to add, but since NI Act is special act, you never know how the court would decide. One thing is sure mandate holder cannot be convicted, but prop can be added or not at this stage, doubtful. 


Another aspect trial is at decision stage, you stated court was about to acquit, so is this sole ground for acquittal, if the case is getting decided in favor of drawer on merit, then should not be a problem.

Dr J C Vashista (Advocate)     02 February 2014

The complaint u/s 138 NI Act are governed by Cr. PC (where NI Act is silent on procedural point) the complaint cannot be amended to implicate the original proprietor as additional accused.

R Trivedi (advocate.dma@gmail.com)     02 February 2014

The interesting issues come to the light in the court. Suppose court admits the application under S.319 then what about mandate holder? Will it add or substitute the accused? Accused cannot be substituted and in case of prop firms there cannot be two accused under S.141, so prop cannot be added. If the court decides to accept application under S.319, the mandate holder can ask for decision under S.255 CrPC as his trial is over (you said decision stage) and the case cannot move under the existing cause title with a new accused. You can argue that evidence was alleged against mandate holder, and it is not the IPC offense so the state has no role under S.319. A person under NI Act can only be made accused after adopting due procedure like giving notice etc under S.138/139 of NI Act, he cannot be made accused by moving an application under S.319 CrPC. To that extent Dr. Vashista's argument is very sound.

Yadanand Legal help (maintenance divorce remarriage = yourscrew@gmail.com)     02 February 2014

Agree with Roy and Laxminarayan.

Other opinions are bases on bookish knowledge only.


The latest 2013 case law says that =


At the time when the criminal case was instituted

the law as settled by the Supreme Court did not require the

company to be made a party to the criminal prosecution. It is only

after cognizance was taken by the criminal court that a larger

bench of the apex court has rendered the decision in Anil Hada

vs. Indian Acrylic Limited (AIR 2000 SC 145), wherein the

Supreme Court has expressed that in circumstances as aforesaid,

when the cheques are issued on behalf of the company, the

prosecution cannot be brought against the Directors without the

company being made a party and therefore, the present

applications are filed seeking leave of this court to bring the

complaint against the company along with its Directors.


applicant has already made an application before the criminal


court under Section 319 of the Code of Criminal Procedure, 1973

in this regard.

Accordingly, the applications are allowed.



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R Trivedi (advocate.dma@gmail.com)     02 February 2014

There is no dispute with respect to company being accused, once the company stands arraigned, all the responsible people can be brought in with due allegations that too in complaint, but the stated case is of proprietorship firm where there are hundreds of case laws that S.141 is not applicable.  Adv Roy, with due respect, has made a general statement with respect to S.319 CrPC, possibly missed to connect the same with challenges put forth by NI Act.

The order of  Hon SC in "Raghu Lakshminarayanan vs M/S. Fine Tubes on 5 April, 2007" will remove certain cobwebs from the minds of such burning and jumping guns.

There is no need for someone to poke his nose or shove his hand, when it is bound to get burnt, such people should stick to advertising their profession loudly against the ethics. Like those Desi quacks on roadside crossings, they also end up getting many harassed patients and some do get treated out of shear luck but lack of so called bookish knowledge kills many such patients.

Biswanath Roy (Advocate)     02 February 2014


1. Upon whom the demand notice was served , i.e., who is the debtor ?

2. Who is the account holder of the alleged cheque which was returned by the banker ?

3. Who is the signatory of the returned cheque ?

4. What was the remark of the banker for their non-acceptance ?.

5.. What was the mode of receipt of the cheque, by courier, by post or by hand ?

6.  Whether intimation of return of the cheque was made to the account holder ? If yes to whom it was communicated?

On receipt of the abovestated informations I can advise you furthur.

Naresh (Prop)     01 March 2015

What Happent Further & The End Result Of This Case ?????

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