2000 (11) TMI 1255 - HC - Companies Law

Summary

Issues Involved:
1. Whether the petitioner (A2) can be vicariously liable under Section 138 of the Negotiable Instruments Act, 1881.
2. Interpretation of Section 138 and Section 141 of the Negotiable Instruments Act regarding liability.

Detailed Analysis:

Issue 1: Vicarious Liability of Petitioner (A2)
The petitioner sought to quash the proceedings against him under Section 138 of the Negotiable Instruments Act, arguing that he was neither a partner nor a director of any firm or company and was arrayed as an individual. The petitioner contended that the Act does not envisage vicarious liability except under Section 141, and thus, the proceedings against him cannot be maintained.

The court noted that the petitioner was neither the managing director nor a director of a company, nor a managing partner or partner of a firm. The cheques in question were issued by A1 on behalf of Columbus and Brothers, where A1 was the proprietor. The court highlighted that the Act envisages personal liability on the drawer of the cheque and vicarious liability only under Section 141 when the offence is committed by a company.

Issue 2: Interpretation of Section 138 and Section 141 of the Negotiable Instruments Act
The court examined Section 138, which outlines the offence of dishonour of cheque for insufficiency of funds. It emphasized that the section clearly states that the person who has drawn the cheque on an account maintained by him is liable if the cheque bounces. The Act does not envisage penal consequences for conspiracy, abetment, or attempt to commit the said offence. The expressions "by a person," "on an account maintained by him," and "such person" indicate that only the drawer of the cheque is liable.

Section 141 extends liability to partners or directors of a firm or company. It states that if the offence is committed by a company, every person in charge of and responsible for the conduct of the business of the company at the time of the offence is also liable. The section identifies three categories of persons liable: (1) the company, (2) those in charge of and responsible for the business of the company, and (3) any director, manager, secretary, or officer whose neglect or connivance led to the offence.

The court referred to the Supreme Court judgment in Anil Hada v. Indian Acrylic Ltd., which clarified that the offender under Section 138 is the drawer of the cheque, and penal liability is extended to others connected with the company only because of Section 141.

The court also considered the background of the incorporation of Sections 138 and 141, which aimed to ensure smooth banking transactions by envisaging penal consequences. Referring to the judgment in G. Surya Prabhavathi v. Nekkanti Subrahmanyeswara Rao, the court reiterated that prosecution can only be launched against the drawer of the cheque and those envisaged under Section 141.

The court rejected the respondent's argument that A1 and A2 could be considered an "association of individuals" under Section 141, noting that the term must be construed in context with "company" and "firm," which are juristic persons. A1 and A2, having entered into an agreement as joint promissors, do not form an association of individuals that can be deemed a juristic person.

Conclusion:
The court concluded that since A2 was not the drawer of the cheque and the cheque was drawn by A1 as the proprietor of Columbus and Brothers, no criminal liability under Section 138 could be fastened on A2. The complaint against the petitioner (A2) was quashed, and the petitions were allowed accordingly.