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TMI Blog2014 (7) TMI 545X X X X Extracts X X X X X X X X Extracts X X X X ..... pany was appointed as distributor of Star Channels and collecting subscription fee for the same. On 27.12.2003, respondent no.2-Company issued three cheques bearing nos.790913, 790912 and 790911 for Rs. 6,00,000/-, Rs. 5,00,000/- and Rs. 5,00,000/- respectively drawn on the Indian Overseas Bank, Gandhi Nagar, Jammu. The aforesaid three cheques were presented before the Indian Overseas Bank, Gandhi Nagar, Jammu and were dishonoured on 6.01.2004. Respondent No.1 served notice on respondent no.2-Company with a demand notice separately for all the three cheques. Respondent no.2-Company replied to the said notice on 20.01.2004 informed respondent no.1 that payments were stopped because of their inability to stop the piracy due to which the cable operators did not make payments. Thereafter, respondent no.1 issued second notice dated 28.01.2004 on the appellant based on the same facts and based on the same memo of dishonor in respect of the aforesaid three cheques. Respondent no.1 also issued a corrigendum of the same date to the said notice. The appellant submitted reply to the said notice on 3.02.2004. 4. Respondent no.1 filed a Criminal Complaint under Sections 138 and 141 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er submitted that even as per law laid down in Anil Handa's case, the Director of a company/accused is only liable vicariously and upon his showing that the principal accused is not liable he cannot be held guilty. 9. On the other hand, according to counsel for the respondents, the issue is no longer res integra as held by the High Court. 10. Section 138 of the Act deals with dishonor of cheque for insufficiency etc. as follows: "138. Dishonour of cheque for insufficiency, etc., of funds in the account.-Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an arrangement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may extend to two years, or with f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered by two Judge Bench of this Court in Anil Hada v. India Acrylic Ltd. (2000) 1 SCC 1. This Court held: "12. Thus when the drawer of the cheque who falls within the ambit of Section 138 of the Act is a human being or a body corporate or even firm, prosecution proceedings can be initiated against such drawer. In this context the phrase "as well as" used in sub-section (1) of Section 141 of the Act has some importance. The said phrase would embroil the persons mentioned in the first category within the tentacles of the offence on a par with the offending company. Similarly the words "shall also" in sub-section (2) are capable of bringing the third category persons additionally within the dragnet of the offence on an equal par. The effect of reading Section 141 is that when the company is the drawer of the cheque such company is the principal offender under Section 138 of the Act and the remaining persons are made offenders by virtue of the legal fiction created by the legislature as per the section. Hence the actual offence should have been committed by the company, and then alone the other two categories of persons can also become liable for the offence. 13. If the offence was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t been made an accused and the one where despite making it an accused, it cannot be proceeded against because of a legal bar." 14. Again the same question was considered by three Judge Bench of this Court in Aneeta Hada v. Godfather Travels and Tours Pvt. Ltd. (2012) 5 SCC 661. The Court noticed the decisions in Anil Hada (supra) case and Aneeta Hada (supra) case. The three Judge Bench while partly overruled the finding of Anil Hada (supra) affirmed the decision of Aneeta Hada (supra). This Court held "51. We have already opined that the decision in Sheoratan Agarwal runs counter to the ratio laid down in C.V. Parekh which is by a larger Bench and hence, is a binding precedent. On the aforesaid ratiocination, the decision in Anil Hada has to be treated as not laying down the correct law as far as it states that the Director or any other officer can be prosecuted without impleadment of the company. Needless to emphasise, the matter would stand on a different footing where there is some legal impediment and the doctrine of lex non cogit ad impossibilia gets attracted." "53. It is to be borne in mind that Section 141 of the Act is concerned with the offences by the company. It make ..... X X X X Extracts X X X X X X X X Extracts X X X X
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