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TMI Blog2022 (5) TMI 466X X X X Extracts X X X X X X X X Extracts X X X X ..... eading which suggests that the Company had committed any offence. When no offence is attributable to the Company, it is not possible to attach liability on the Managing Director by the deeming provisions of Section 141 of the N.I. Act. Amendments of simple technical infirmities alone can be allowed but not the filing of a fresh complaint with improved pleadings, in the garb of amendment. Petition dismissed. - CRL.M.C. 1382/2022 - - - Dated:- 9-5-2022 - HON'BLE MS. JUSTICE ASHA MENON Petitioner Through: Mr. Mahesh K. Mehta, Advocate. Respondent Through: None. J U D G M E N T 1. This petition has been filed under Section 482 Cr.P.C. by the complainant for setting aside the orders dated 28th August, 2015 and 23 rd October, 2017, passed by the learned Trial Court and the learned Appellate Court respectively, dismissing his complaint case. 2. The petitioner had filed a complaint case under Section 138 of Negotiable Instruments Act, 1881 ( N.I. Act , for short) against the respondent. It was stated in the complaint that the commercial space owned by the petitioner in Punjabi Bagh (West) had been let out upon terms and conditions incorporated in the reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y a curable defect which could be rectified by way of amendment. 5. I have considered the judgments relied upon by the learned counsel for the petitioner and the material on the record. 6. The contention of the learned counsel that Aneeta Hada s case is per incurium as it has overlooked the decisions of the Supreme Court in U.P. Pollution Control Board (supra), Rajneesh Aggarwal (supra) and Bilakchand Gyanchand Co. (supra) is completely misplaced. Aneeta Hada s case is an exhaustive judgment. U.P. Pollution Control Board (supra) has been specifically referred to in this case in Para 52. The decisions in Rajneesh Aggarwal and Bilakchand Gyanchand Co. cases were also cited before the Supreme Court and referred to in para 16 of the judgment. Except for making a wild claim that a three judges decision in Aneeta Hada (supra) is per incuriam, the learned counsel has been completely unable to explain how it was so. 7. Before coming to the decision in Aneeta Hada s case, the other three judgments may be discussed. In U.P. Pollution Control Board (supra), instead of lodging a prosecution against M/s Modi Industries Ltd., its unit called M/s Modi Distillery had been impleaded. Sinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed/Director was sufficient notice to the Company and, therefore, the Company had committed an offence. In other words, it is only when the Company is found to have committed an offence under Section 141 that vicarious liability would attach to the Director. Therefore, this judgment is not directly on the point whether in the absence of a Company being impleaded as an accused, its directors can be so impleaded. This question has been directly answered in Aneeta Hada (supra). 12. In Bilakchand Gyanchand Co. (supra) once again the question was on issuance of notice. Here again it was held that cheques were signed by the Managing Director of the company and notice under Section 138 of the N.I. Act having been sent to the Managing Director, the complaint could not be quashed on the ground that the notice was not sent to the company. Again, this is not a judgment directly relevant to the question before this Court. 13. Coming to Aneeta Hada s judgment, where two enactments were before the Supreme Court (i) Sections 138 141 of the N.I. Act and, (ii) Section 67 read with Section 85 of the Information Technology Act, 2000, the three Judges Bench formulated the core issue in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting act. Section 141 of the N.I. Act operates only when the offence under Section 138 of the N.I. Act is committed by a company. The view taken by a two judges Bench of the Supreme Court in Anil Hada v. Indian Acrylic Ltd., (2000) 1 SCC 1 was discussed, while also observing that even in Anil Hada s case, the view has been taken that the actual offence should have been committed by the Company and then alone the other two categories of persons would become liable for the offence. It was only if there was a legal snag, where the company, though prosecuted, cannot be proceeded against, the prosecuted persons cannot escape liability created through legal fiction as envisaged under Section 141 of the Act. 17. In other words, the Company being the primary accused must be found to have committed an offence. Thereafter, through the legal fiction created by Section 141 of the N.I. Act, the Directors and other persons responsible for the conduct of its business also become vicarious liable. If no offence is attributed to the company, it is but the natural corollary, that its Directors and other persons responsible for the conduct of its business cannot be saddled with any liability. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 SCC 684 : 1987 SCC (Cri) 632] has to be treated to be restricted to its own facts as has been explained by us hereinabove. 21. It is this judgment that has been followed by the learned Trial Court as well as the Appellate Court. 22. Admittedly, in the complaint filed by the petitioner, the Company M/s Accura Care Pharmaceuticals Pvt. Ltd. has not been impleaded. Following the judgment in Aneeta Hada s case, the learned Trial Court and Appellate Court had rightly concluded that the complaint was not maintainable. 23. However, reliance has been placed now on the decision of the Supreme Court in S.R. Sukumar (supra) to submit that the petitioner ought to be permitted to amend his complaint. The facts of that case are different. The Magistrate had not taken cognizance of the complaint, the accused was yet to be summoned. Thus, no prejudice was likely to be caused to any person, if the amendment was allowed. Moreover, the amendment was with reference to a subsequent event which permitted the complainant to initiate another complaint on the new cause of action. Thus, to avoid the multiplicity of proceedings, the amendment was permitted. That case was dealing with defamatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was the respondent who had refused to pay the cheque amount to the complainant; the notice was issued to the respondent which was served at the residential address but remained unserved at the address of the working place ; and finally it is averred in para 10 that from the above facts and circumstances it is crystal clear that the accused has committed an offence U/s 138 of Negotiable Instruments Act as well as Section 420 of Indian Penal Code for which the accused is liable to be punished in accordance with Law. It is therefore respectfully prayed that the Hon ble court be pleased to summon, try and punish the accused in accordance with law, in the interest of justice. In other words, there is no pleading which suggests that the Company had committed any offence. When no offence is attributable to the Company, it is not possible to attach liability on the Managing Director by the deeming provisions of Section 141 of the N.I. Act. Amendments of simple technical infirmities alone can be allowed but not the filing of a fresh complaint with improved pleadings, in the garb of amendment. Thus, following these very judgments relied upon by the learned counsel for the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X
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