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TMI Blog2014 (10) TMI 1050X X X X Extracts X X X X X X X X Extracts X X X X ..... is. The respondent No. 2 herein - the original complainant was doing the business of stone-crushing in the name of Radhika Stone Industries along with other owners. It is alleged that out of the business transaction, the partnership firm of the petitioner has raised a demand for stone material from respondent No. 2 for the purpose of construction of road in Ahmedabad City, and therefore, the respondent No. 2 supplied material to the partnership firm, namely, M/s. Maruti Projects. It is further alleged that the partnership firm issued cheque bearing No. 107809 dated 22nd June 2007 for an amount of rupees five lakhs to discharge its liability. Similarly, said partnership firm issued cheque No. 107819 dated 18th June 2007 for an amount of rupees five lakhs, and another cheque No. 107847 dated 13th February 2008 for an amount of rupees five lakhs. It is alleged by the respondent No. 2--the original complainant that when the aforesaid three cheques issued by the partnership firm for the discharge of its liabilities were deposited by the complainant in his bank account, said cheques were returned with an endorsement 'insufficient fund', and "payments were stopped by the drawer" r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons further submitted that if the partnership firm or a company has committed an offence punishable under Section 138 of the N.I. Act, then, the partnership firm or the company, as the case may be, is required to be joined as an accused in the complaint. The learned advocate for the applicant has relied upon the decision of the Honourable Apex Court in the case of Aneeta Hada v. M/s. Godfather Travels and Tours Private Limited reported in AIR 2012 SC 2795 : [2012 ALLSCR 1424], and submitted that the Honourable the Supreme Court in the aforesaid case has held that for maintaining the prosecution under Section 141 of the N.I. Act, arraigning of a company as an accused is imperative. He, therefore, submitted that in view of the aforesaid provisions of law, and in view of the decision of the Honourable Supreme Court in the case of Aneeta Hada, (2012 ALL SCR 1424] (supra), the case of the applicant is squarely covered, and hence, these three applications filed by the applicant be allowed, and the impugned complaints may be quashed and set aside. 5. Mr. Ashish Dagli, learned advocate for the respondent No. 2 mainly submitted that the ingredients of Section 138 of the N.I. Act are made o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is drawn or within the period of its validity, whichever is earlier. (b) The payee or the holder induce course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer, of the cheque, "within thirty days" of the receipt of information by him from the bank regarding the return of the cheques as unpaid, and (c) The drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation: For the purpose of this section, "debt or other liability" means a legally enforceable debt or other liability." Thereafter, learned advocate for the applicant referred to Section 141 of the N.I. Act, which deals with the offences committed by the companies. Section 141 of the N.I. Act reads as under: "141- Offences by companies.--(1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the aforesaid passages only to highlight that there has to be strict observance 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 prosecution against the directors or other officers is tenable even if the company is not arraigned as an accused. The words as well as have to be understood in the context. In Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. And others it has been laid down that the entire statute must be first read as a whole, then section by section, clause by cla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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