2015 (9) TMI 1189 - HC - Indian Laws

Offence u/s.138 of the Negotiable Instruments Act - cheques were returned unpaid owing to insufficient funds - Held that - Two of the cheques are drawn on the account of the College and one on the account of the Trust. Only the signatory of the cheque/Chairman of the College has been arrayed as an accused. When admittedly, borrowings were effected towards development of the College constituted under the Trust, the liability therein primarily would be that of the Trust/College. Only when such Trust/College is arrayed as an accused, petitioner may be proceeded against on the assertion that he is incharge of and responsible to the Trust/College in the conduct of its affairs. That he is so would find support from the fact that he is the signatory of the cheque. However, in the absence of arraying the Trust/College, the question of vicarious liability of petitioner does not arise. This Criminal Revision shall stand allowed. The judgments of Courts below shall stand set aside. Petitioner is acquitted of all Charges. Fine amount, if any paid, shall be refunded to petitioner. Bail bonds, if any, shall stand cancelled. - Decided in favor of petitioner.

Issues:
1. Conviction under Section 138 of the Negotiable Instruments Act.
2. Liability of the signatory of the cheques in the absence of arraying the Trust/College as an accused.
3. Interpretation of Section 141 of the Negotiable Instruments Act regarding vicarious liability.
4. Application of the 'alter ego' principle in cases involving juridical persons under Section 138 of the Negotiable Instruments Act.

Issue 1: Conviction under Section 138 of the Negotiable Instruments Act
The petitioner was convicted under Section 138 of the Negotiable Instruments Act for issuing three cheques that were returned unpaid due to insufficient funds. The complainant presented the cheques for payment, and upon their return, a statutory notice was issued. The trial court and the appellate court upheld the conviction and sentenced the petitioner to undergo 3 months of simple imprisonment and directed payment of compensation amounting to Rs. 10,00,000. The petitioner then filed a Criminal Revision challenging the conviction.

Issue 2: Liability of the signatory of the cheques in the absence of arraying the Trust/College as an accused
The complaint alleged that the petitioner, as the signatory of the cheques, was responsible for borrowing funds for the development of the college under the Trust. However, the court noted that since the Trust/College was not arrayed as an accused, the question of vicarious liability of the petitioner did not arise. The court emphasized that the liability primarily rested with the Trust/College, and without their inclusion as accused, the petitioner could not be held solely liable.

Issue 3: Interpretation of Section 141 of the Negotiable Instruments Act regarding vicarious liability
Referring to previous judgments, the court highlighted that a Trust would fall under the definition of 'Company' as per the proviso to Section 141 of the Negotiable Instruments Act. It was emphasized that impleading the Trust/Company as an accused was a mandatory requirement, and prosecuting the Director or authorized signatory without including the Trust/Company would not be maintainable. The court underscored the importance of correctly impleading the juridical person for offenses under the Act.

Issue 4: Application of the 'alter ego' principle in cases involving juridical persons under Section 138 of the Negotiable Instruments Act
The court, considering the 'alter ego' principle, allowed the Criminal Revision, setting aside the judgments of the lower courts. The petitioner was acquitted of all charges, and any fine amount paid was ordered to be refunded. The court raised a thought regarding the applicability of the 'alter ego' principle in cases involving juridical persons under Section 138 of the Negotiable Instruments Act, emphasizing the need to hold juridical persons accountable for offenses to serve the social objective of the Act.

In conclusion, the High Court of Madras allowed the Criminal Revision, acquitting the petitioner of all charges due to the absence of the Trust/College being arrayed as an accused, thereby negating the vicarious liability of the petitioner. The judgment highlighted the importance of correctly impleading juridical persons and individuals in cases under the Negotiable Instruments Act to ensure accountability and adherence to legal provisions.

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