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TMI Blog2015 (9) TMI 1706X X X X Extracts X X X X X X X X Extracts X X X X ..... burden is on the accused under reverse onus clause from the cheque routed from the account of the accused No. 1 company signed by A-2 on behalf of the A-1 that too there are transactions. Thus, it is for the accused to discharge to rebut the presumption by entering the defence as to how the amount covered by the cheque is not legally enforceable debt or other liability. The contention that the stock is entitled to be returned if not to the standard or the stock is returned through some transport agency and complainant not received, that by itself does not absolve the liability for not a case of as on the date of cheque issued, there is no debt or other liability - The contention that the stock is entitled to be returned if not to the standard or the stock is returned through some transport agency and complainant not received, that by itself does not absolve the liability for not a case of as on the date of cheque issued, there is no debt or other liability. Petition allowed. - Criminal Petition Nos. 11336 and 13561 of 2014 - - - Dated:- 11-9-2015 - Dr. B. Siva Sankara Rao, J. For Appellant: G. Jhansi For Respondents: V. Prabhakar ORDER Dr. B. Siva Sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s A-1 Company and A-2 its Managing Director concerned, it is averred that A-1 and A-2 are also falsely and erroneously implicated even they are innocent, to extract money by exercise of threat, the material filed with complaint shows the product supplied by the complainant were returned as per Clause II of sale-cumpurchase agreement dated 07.10.2013 and as such there is no legally enforceable debt in subsistence, that the Court below did not apply its mind in this regard in taking cognizance and issuing summons which is nothing but abuse of process, that A-1 Company filed arbitration O.P. No. 1784 of 2014 before 24th Additional Chief Judge, City Civil Court, Hyderabad against the complainant and also filed application under Section 9 of the Act to direct the complainant herein to take back the stock from Kranthi Road Transport Private Limited and that once the stock is returned that is not even receiving by its refusal by the complainant, there is no legally enforceable debt or other liability and continuation of proceedings are nothing but gross abuse of process and hence to quash. It is the submission of the accused/quash petitioners supra by reiteration of the above contentions. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... treated the law as such. The fault of the manager will be the personal fault of the Company. The knowledge and intention must be imputed to the body corporate. It was concluded therefrom by referring to Standard Chartered Bank para No. 6 supra of a Company is liable to be prosecuted and punished for criminal offences in deviation to the earlier authorities in India of Corporations cannot commit a crime, for generally accepted modern rule is that except for such crime as a corporation is held incapable of committing by reason of the fact that they involve personally with malicious intent, a corporation may be subject to indictment or other criminal process, although the criminal act is committed through its agent. The criminal intent of the alterego of the Company, that is the personnel group of persons that guide, the business of the Company would be imputed to the Company/corporation. It was the observation in Iredium supra that was again followed in latest three Judge bench expression of the Apex Court in Sunil Bharti Mittal V. C.B.I. (2015)4 SCC 609. It was observed in Sunil Bharti Mittal (supra) that the corporate entity, an artificial person acts through its officers, directo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a (I) V. Godfather Travels Tours (P) Ltd. (2008)13 SCC 703. saying without the Company impleaded as accused on the principle of Lex non cogit ad impossibilia and from that legal snag if the Company is not made accused, the proceedings against others cannot be. The said principle of Aneeta Hada (1) then came before three Judge bench expression in Aneeta Hada (2) supra where the Anil Hada is over ruled and Aneeta Hada (1) is affirmed in saying at paras 51 to 59 the relevancy of which reads the decision in Anil Hada has to be treated 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 on the doctrine referred supra. Section 141 of the N.I. Act makes the other persons vicariously liable for commission of an offence on the part of the Company and to attract the vicarious liability the condition precedent laid down in Section 141 of the N.I. Act has to be satisfied. Thus, the words as well as the Company used therein makes it absolutely and unmistakably clear that when the Company can be prosecuted, then the only persons mentioned in the other categories could be vicariously liable for the offen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n another expression referring to Section 141 of the N.I. Act by the Apex Court in Saroj Kumar Poddar V. State (2007)3 SCC 693 referring to S.M.S. Pharmaceuticals supra apart from another expression, that for dishonour of cheque making of requisite averments in the complaint is a statutory requirement and the allegations satisfy the same, in the absence of which the proceedings are liable to be quashed. The other expression of the Apex Court two Judge bench in National Small Industries Corporation V. Harmeet Singh (2010)3 SCC 330 also referring to Parekh supra and S.M.S. Pharmaceuticals supra among other expressions held that vicarious liability on the part of any Director or other person as incharge and responsible to the conduct of business be specifically averred, though same is not required against a Managing Director. Section 141 of the N.I. Act is very clear that it must be shown that the person for vicariously liable should be at the time of offence committed incharge of and responsible to the Company for conduct of its business. Otherwise every person connected with the Company shall not be made liable but those persons responsible for conduct of its business. A Director of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the status apart from A-2 is signatory to the cheque issued not in dispute is liable. It is needless to say as per Rangappa supra, the burden is on the accused under reverse onus clause from the cheque routed from the account of the accused No. 1 company signed by A-2 on behalf of the A-1 that too there are transactions. Thus, it is for the accused to discharge to rebut the presumption by entering the defence as to how the amount covered by the cheque is not legally enforceable debt or other liability. The contention that the stock is entitled to be returned if not to the standard or the stock is returned through some transport agency and complainant not received, that by itself does not absolve the liability for not a case of as on the date of cheque issued, there is no debt or other liability. Needless to say, this observation no way takes away any defence of the accused 1 and 2 as to the stock is not to the standard quality and thereby liable to be returned and there from the amount therein to be deducted out of the cheque amount, if any. Even that itself does not absolve from total liability, but for to the proposition if any, unless it extends to the total liability and it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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