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TMI Blog2017 (2) TMI 812X X X X Extracts X X X X X X X X Extracts X X X X ..... it has not been provided in the Act that a person though in-charge of the affairs of the company, if signs the cheque in his individual capacity, the company will be vicariously liable. Thus if the cheque is issued by an individual not acting on behalf of the company, the vicarious liability on the company cannot be fastened in the absence of any specific provision permitting the same. If dishonor of a cheque has once snowballed into a cause of action it is not permissible for a payee to create another cause of action with the same cheque. The cheque in question was re-presented and on each occasion of dishonor, notice was issued by the complainant. Thus the cause of action to file the complaint under Section 138 read with Section 142 N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a issued a legal notice through the counsel to Unicon under Section 138 NI Act on 26th February, 2011 stating that Unicon had received an amount of ₹ 5,98,600/- individually for booking of an apartment in Today Homes and Infrastructure Pvt. Ltd. (in short Today Homes ) and a Memorandum of Understanding in this regard was signed and executed by Shri Nikhil Nigam, Regional Head, Gurgaon of Today Homes. Unicon promised to repay the principal amount with appreciation totalling to a sum of ₹ 9,78,600/- and had issued cheque No. 445803 for a sum of ₹ 78,28,800/- drawn on Standard Chartered Bank, Sansad Marg dated 28th January, 2011 to Gopal Dass, representative of all the noticee. 3. On 29th January, 2011 on presentation, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a House Courts, New Delhi under Sections 138 and 142 of NI Act whereon summons were issued to both Unicon and Nikhil Nigam vide order dated 24th June, 2011. 6. Contention of learned counsel for the petitioner Unicon is twofold. Firstly, that the cheque was signed by Nikhil Nigam not as authorized signatory of Unicon but in his individual capacity and thus Unicon could not be made liable for non-payment. Secondly, it is urged that the complaint was barred by limitation as the cause of action accrued to the petitioner for filing of the complaint when payment was not made after a lapse of 15 days from the receipt of the first notice dated 26th February, 2011. Reliance is placed on the decision of the Supreme Court reported as 1998 (6) SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action it was held: 5. The next question that falls for our determination is whether dishonour of the cheque on each occasion of its presentation gives rise to a fresh cause of action within the meaning of Section 142(b) of the Act. Section 142 reads as under: 142. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (a) no court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138; (c) no court inferior to tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g, in that, it refers to only one fact which will give rise to the cause of action and that is the failure to make the payment within 15 days from the date of the receipt of the notice. The reason behind giving such a restrictive meaning is not far to seek. Consequent upon the failure of the drawer to pay the money within the period of 15 days as envisaged under clause (c) of the proviso to Section 138, the liability of the drawer for being prosecuted for the offence he has committed arises, and the period of one month for filing the complaint under Section 142 is to be reckoned accordingly. The combined reading of the above two sections of the Act leaves no room for doubt that cause of action within the meaning of Section 142(c) arises - a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statutes, the court always presumes that the legislature inserted every part thereof for a purpose and the legislative intention is that every part should have effect, the above conclusion cannot be drawn for that will make the provision for limiting the period of making the complaint nugatory. 9. Now, the question is how the apparently conflicting provisions of the Act, one enabling the payee to repeatedly present the cheque and the other giving him only one opportunity to file a complaint for its dishonour, and that too, within one month from the date the cause of action arises, can be reconciled. Having given our anxious consideration to this question, we are of the opinion that the above two provisions can be harmonised, with the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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