Non-Impleadment Of Firm In Cheque Bounce Case Is Curable Defect: Delhi High Court

The Delhi High Court has held that non-impleadment of a firm in cheque bounce case instituted against its partner under Section 138 of the Negotiable Instruments Act is a curable defect.Thus allowing a complainant/ payee to amend the pleadings subject to ₹35,000/- cost, Justice Amit Mahajan observed,“This Court is of the view that the non-impleadment of the firm is a curable defect...the stage of effective trial has not commenced yet. The accused has not yet faced the process of recording of plea, evidence, or cross-examination. In such circumstances, it cannot be said that permitting an amendment to implead the partnership firm would cause prejudice to the petitioner. On the contrary, refusal to allow such an amendment would result in stifling of proceedings on a mere technicality, thereby defeating the object of Section 138 of the NI Act.”The partner had moved the High Court seeking quashing of the complaint case. It was his case that the accused firm itself had not been made a party to the proceedings.The respondent-company, which owns and runs women's apparel brands like W and Aurelia argued that Petitioner had represented himself as a sole proprietor and as such, proceedings were instituted under mistaken form of the entity. It sought to implead the firm by way of an amendment to the pleadings.Since the trial court had already issued summons, the issue before the Court was whether the complaint can be permitted to be amended at a post-summoning stage.At the outset, the High Court observed that it can quash the proceedings in NI Act cases, if such unimpeachable material is brought forth by the accused persons which indicates that they were not concerned with the issuance of the cheques, or in case where legal lacuna of such nature is pointed out which goes to the root of the matter.In the present case however, the Court noted, although cognizance was taken in the present matter, the summons issued to the petitioner remained unserved on multiple occasions. Thus, the stage of effective trial has not commenced yet, it said.“The complaint was filed way back in the year 2019. In the interest of justice, the respondent should be granted an opportunity to file an application to amend the complaint and rectify these errors, so as to ensure proper adjudication on merits…where there is a simple/ curable infirmity in the complaint and neither does it change the nature of the complaint nor cause prejudice to the accused persons, a formal amendment in the complaint may be permitted,” it held.Appearance: For the Petitioner : Mr. Gagan Gandhi, Mr. Vijay Kumar, Dr. B.S. Chauhan, Ms. Luvika & Ms. Shraddha Saxena, Advs. For the Respondent : Mr. Nitin Sharma, Adv. along with Mr. Jatin Kumar, AR of the Respondent. Mr. Ashish Mohan, Sr. Adv., Amicus.Case title: Himanshu v. TCNS Clothing Co. LtdCitation: 2025 LiveLaw (Del) 1052Case no.: W.P.(CRL) 1989/2022 Click here to read order

Non-Impleadment Of Firm In Cheque Bounce Case Is Curable Defect: Delhi High Court

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