KAMAL LAKHOTIA Vs. RAJESH PAREKH

JUDGEMENT

(1.) Rule. Rule made returnable forthwith. Heard learned Counsel for the parties.

(2.) To state in brief, the petitioner before this Court is the original complainant. Respondent no.2, the proprietor of M/s. Impact Impex, was indebted to the complainant and to discharge the liability, two cheques of Rs. 4,30,000/- each were issued by the proprietor/authorised signatory for M/s. Impact Impex in favour of the petitioner against Union Bank of India. The cheques were presented, but they were dishonoured on 18.9.2007. On 21.9.2007, the petitioner issued a notice to the proprietor of Impact Impex demanding the money in view of the cheques being dishonoured. Inspite of service, payment was not made. on 22.10.2007, the petitioner filed a complaint against respondent No.1 showing him to be proprietor of Impact Impex on 22.10.2007. Process was issued against respondent no.1. Trial proceeded. On 31.3.2008, the petitioner was crossexamined on behalf of the accused/respondent No.1 wherein it was suggested that the accused/respondent No.1 was not the proprietor of M/s. Impact Impex nor he was signatory of the cheques. After prosecution evidence was over, statement of respondent No.1 was recorded under Section 313 Cr.P.C. He also examined himself as a defence witness. A Bank officer was also examined in defence to establish that the respondent No.1 was not the proprietor, but his father Bhaven Parekh, who is respondent No.2, was the proprietor of M/s. Impact Impex. In view of this disclosure, on 6.1.2009, the petitioner filed an application under Section 319 Cr.P.C. to implead respondent No.2 as an accused in the case. The notice was issued. That application was opposed and the application came to be rejected on the ground that by the time the application was filed to implead respondent No.2 as accused, the complaint under sec.138 of Negotiable Instruments Act against him was barred by limitation, as such a complaint could be filed within one month from the date on which the cause of action had arisen. Against rejection of that application, the present petitioner preferred Criminal Revision Application No.54/2009. The Revision Application also came to be rejected. Hence, this petition.

(3.) The learned Counsel for the petitioner vehemently contended that the petitioner was not aware as to whether the respondent No.1 was the proprietor or it was the respondent No.2. The respondent No.2 is father of respondent no.1 and because of this, mistake was committed and the case was filed against respondent No.1 When it was disclosed that respondent No.2 was the real proprietor of M/s. Impact Impex, an application was moved for his impleading as accused. The learned Counsel contended that the application was filed within a period of month from the date on which cause of action had arisen. The cognizance of the case was taken. According to him, Court was required to take cognizance of the case and not cognizance of the accused and, therefore, respondent No.2 could be impleaded as accused pending the case. In support of this contention, the learned Counsel placed reliance upon M/s. Plywood House v. M/s. Wood Craft products Ltd. &Ors., 1994 CrLJ 543. Further he contended that in view of the proviso to clause (b) of Section 142, cognizance of complaint may be taken even after the prescribed period if the Court is satisfied that the complainant had sufficient cause for not making complaint within such period.