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REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1341     OF 2009 [Arising out of SLP(Crl.) No. 8693/2008]

  K. SATYANARAYAN ... APPELLANT(S)

:VERSUS:

  MADHUR AND ANR. ... RESPONDENT(S)

O R D E R

S.B. SINHA, J.

Leave granted.

The  appellant  is  before  us  aggrieved  by  and  dissatisfied  with  the  

judgment and order dated 25.7.2008 passed by the High Court of Judicature at  

Bombay,  whereby  and  whereunder  a  writ  petition  filed  by  him  marked  as  

Criminal Writ Petition No. 514/2006 questioning the correctness or otherwise of  

the judgment and order dated 4.2.2006 passed by the JMFC, Sakoli, in Summary  

Criminal Case No.3990/2002 arraying him as an additional accused,  has been  

dismissed.      

The original accused Shridhar son of Bhapuji Donapanji, is said to have  

issued  a  cheque  for  Rs.  10  lakh  to  respondent  No.1.  The  said  cheque  was

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presented  by  the  respondent  before  the  Bank  of  India,  Branch  Lakhani,  for  

realisation,  but  the  same  was  returned  to  him  with  the  endorsement  “Fund  

Insufficient”.  

A notice was served upon Shridhar for making payment of Rs. 10 lakh  

within 15 days of the receipt thereof and on his failure to pay the amount, a  

complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short  

'the Act') was filed.  

During the hearing of the said complaint petition, allegedly, the Bank  

Manager stated that the account was opened in the name of the appellant herein.  

Relying on or on the basis of the said statement, the complainant  (respondent  

No.1 herein) filed an application purported to have been filed under Section 319  

of the Cr.P.C. before the learned Magistrate for summoning the appellant as an  

additional accused in the said complaint application. The said application was  

allowed by the learned Magistrate by his order dated 4.2.2002. A writ petition  

preferred thereagaisnt has been dismissed by the impugned judgment.        

Indisputably, the Courts in ordinary circumstances may exercise their  

jurisdiction  in  terms  of  Section  319  Cr.P.C.  to  summon  any  person  as  an  

additional accused.  However, the proviso appended to Section 138 of the Act  

mandates that before a complaint petition thereunder becomes maintainable, the  

conditions precedents specified therein must be satisfied.  It is not in dispute that  

no notice was served upon the appellant by the complainant-respondent No.1 in

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terms of proviso (b) appended to Section 138 of the Act and in that view of the  

matter, the complaint petition being not maintainable against him, the learned  

Magistrate must be held to have committed a jurisdictional error in passing the  

impugned order dated 4.2.2006.  

For  the  reasons  aforementioned,  the  impugned  judgment  cannot  be  

sustained which is set aside accordingly and the appeal is allowed.  

........................J (S.B. SINHA)

........................J   (DEEPAK VERMA)    NEW DELHI, JULY 20, 2009.