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2023 (11) TMI 360 - GUJARAT HIGH COURTDishonour of Cheque - legally enforceable debt or not - acquittal of accused - non-joinder of drawer of the disputed cheque - fatal to the proceedings under Section 138 of the Negotiable Instruments Act or not - HELD THAT:- The issue whether the learned Magistrate committed any error in dismissing the complaint by holding that non-joinder of drawer of the disputed cheque i.e. Company is fatal to the proceedings under Section 138 of the Negotiable Instruments Act is no longer res integra - The similar had question arose for consideration before three Judges Bench of the Hon'ble Supreme Court in the case of Anita Handa [2012 (5) TMI 83 - SUPREME COURT] as to whether the complaint under Section 138 of the Negotiable Instruments Act and Section 141 thereto against the Director or authorized signatory of the cheque without arraigning the company as accused, was maintainable? Initially, the matter was notified before two Judges Bench, which due to diversion of opinion, was referred to the three Judges bench. The Hon’ble Supreme Court had upon analysis of relevant provisions of the Negotiable Instruments Act, held that Section 141 uses terms ``person” and refers it to a company. The Company is treated as a juristic person in the eyes of law and the concept of corporate criminal liability is attracted to a corporation and company. The said provisions of the Act invariably held in offences by the Company, certain categories of officers in certain circumstances are deemed to be guilty of the offence under Section 138 of the Negotiable Instruments Act. In view of the aforesaid analysis drawn by the Hon’ble Supreme Court, this Court is of the view that non-joinder of the Company as accused, which otherwise is treated as principal offender being drawer of the cheque, the Director of the Company joined as sole accused representing the company as well as authorised signatory, would not served the provisions of Section 141 of the Act. Thus, no arguable case is made out to grant this application seeking special leave to appeal. Appeal disposed off.
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