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TMI Blog2021 (9) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 138 is company, every person who at the time the offence is committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence, shall be liable to be proceeded against and punished accordingly. In the absence of company (society) arraigned as accused, a complaint against the petitioners was therefore not maintainable. The petitioners being employed as General Manager and Branch Manager have signed the cheque, therefore, the proceedings against the petitioners are liable to be quashed. The learned counsel for respondent sought liberty to file an application to add company (Society) as the accused. Whether such application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petitioner No.1 on behalf of said society issued a cheque bearing No.030124 for a sum of ₹ 15.00 lakhs dated 12.12.2013 towards payment of maturity amount. Upon presentation of the said cheque by the respondent-complainant with its banker, the same was dishonoured with an endorsement stating Insufficient Funds . 4. Though notice is served upon the petitioners, the petitioners have failed to pay the amount under the cheque and the respondent was constrained to file the complaint. Upon receipt of sworn statement by the respondent/complainant by way of affidavit, the trial court was pleased to take cognizance of the alleged offence punishable under Section 138 of the N.I. Act and directed for registration of a criminal case. Accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Himanshu V/s. B. Shivamurthy and another reported in (2019) 3 SCC 797. 8. Per contra, learned counsel for respondent has contended that the petitioners were in charge of the business of the cooperative society and therefore, they are guilty of offence as they have issued the cheque in favour of the respondent/complainant. He further contended that the respondent be given liberty to amend the complaint to implead the cooperative society as accused. He further contended that seeking the amendment of the complaint is permissible. On that point he placed reliance on the following decisions: 1. U.P. Pollution Control Board V/s. Modi Distillery and Others, reported in AIR 1988 SC 1128 2. Manish Kalani and Others, V/s. Housin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of the provisions regard being had to the legislative intendment because it deals with penal provisions and a penalty is not to be imposed affecting the rights of persons, whether juristic entities or individuals, unless they are arrayed as accused. It is to be kept in mind that the power of punishment is vested in the legislature and that is absolute in Section 141 of the Act which clearly speaks of commission of offence by the company. The learned counsel for the respondents have vehemently urged that the use of the term as well as in the section is of immense significance and, in its tentacle, it brings in the company as well as the Director and/or other officers who are responsible for the acts of the company and, therefore, a pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant for Lakshmi Cement and Ceramics Industries Ltd., as its Director. A notice of demand was served only on the appellant. The complaint was lodged only against the appellant without arraigning the company as an accused. 16. The provisions of Section 141 postulate that if the person committing an offence under Section 138 is a company, every person, who at the time when the offence was committed was in charge of or was responsible to the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished. 17. In the absence of the company being arraigned as an accused, a complaint against the appellant was therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X
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