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TMI Blog2012 (4) TMI 797X X X X Extracts X X X X X X X X Extracts X X X X ..... sed was paying the amount through telegraphic transfer and under the terms of the agreement, the complainant was to send the statement of accounts by fax for every 15 days. At the end of fishing season i.e., on the 04.06.2002, the complainant sent the final statement, under which the accused was liable to pay ₹ 73,24,710-00 to the complainant. The accused had called the complainant to his company on 02.08.2002 to settle the debt and at that time, the accused issued 3 cheques of the State Bank of India (1) bearing No. 511693 dated 14.08.2002 for ₹ 20 lakhs (2) bearing No. 511634 dated 05.09.2002 for ₹ 15 lakhs and (3) bearing No. 511695 dated 17.03.2002 ₹ 20 lakhs. The accused had undertaken to settle the balance amount of ₹ 18,24,710 during the next fishing season. Later, the complainant received a notice dated from the accused castigating false aspersions on the complaint and in fact the accused had enquired at the said letter. The accused pacified the complainant and requested to present the cheques for encashment after a week from the date of the cheques. The complainant presented the cheque bearing No. 511693 dated 14.08.2002 for ₹ 20 lakhs t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the agreement and to substantiate this contention, he has produced Exs. P11 to 133, the receipts regarding the freight charges, advance paid and the balance due as per the supply of Rani fish to the Tim Tim Far East Sea Food, Patalganga, which the accused is the Managing Director and the statement of account maintained by the complainant has been produced as per Exs. P142 to and it repeals that an amount of ₹ 73,24,710-00 was due by the accused. The complainant also produced Exs. P152, letter issued on behalf of the accused company to the learned counsel for the complainant, wherein it is stated Our clients have even in our letter dated October 3, 2002 admitted that there is a sum of ₹ 23,79,428-00 due as on 30.06.2002 to your clients for the fish supplied. So, clearly under this letter, the accused admitted the liability atleast to an extent of ₹ 23,79,428-00, though the complainant claims that an amount of ₹ 73,24,710-00 was due, the cheque Ex. P1 in dispute is for ₹ 20 lakhs. So, there is no necessity for this Court to find out as to whether the accused is due for more than ₹ 73,24,710-00 lakhs when to an extent of ₹ 23,79,428-00 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her opinion was that the Company is not a necessary party and in the circumstances, the matter was referred to a larger bench. In part I (2010) BC 674(SC) [National Small industries Corporation Ltd. v. Harmeet Singh Paintal anr.], it has been held: The penal pro-vision creating vicarious liability e.g., Section of the Negotiable Instruments Act, must be strictly construed. So also reliance is placed on the decision of this Court reported in ILR 2011 Kar. 2475 [Smt. Rasheeda Mehaboob v. Replicon Software (India) Private Limited Represented by its Manager], wherein it is held: It is clear from the provisions of Section 138 of Negotiable Instruments Act that it is only a person who has drawn the cheques, who is deemed to have committed an offence under Section 138 of N.I. Act, if the cheque drawn by the said person is returned from the bank with an endorsement 'insufficient funds'. It is not possible to read from the contents of the Section 138 of the N.I. Act that even a person who is not the drawer of the cheque also can be made liable in respect of an offence under Section 138 of N.I. Act. The Trial Court in the instant case was not justified in issuing su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Commodities Act, : The said provision is extracted herein for the purpose of convenience: (1) If the person contravening an order made under Sec. 3 is a company, every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly; Provided that nothing contained in this sub-section shall render any such person liable to any punishment I he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention. (2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. The Apex Court while considering the provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a Company, every persons who at the time the offence was committed was in charge of and was responsible to the Company 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 accordingly. The explanation to that section provides that the Company means and includes a firm also, However it cannot be contended that the persons who were incharge of and were responsible to the company for the conduct of the business cannot be prosecuted for the offence committed by the company without the company itself being prosecuted, Therefore when the offence under Section 138 of the Act was committed by a partnership firm it cannot be said that as the offence is committed by the firm, the partners cannot be prosecuted without the firm being arraigned as an accused. 15. In 2004 Crl.L.J. 3170 [B.V. Rangam v. B. Govinda Reddy and another], the High Court of Andhra Pradesh had an occasion to consider the provisions of Section 141 of the Act and in a complaint for dishonour of cheque, a contention was raised for non-joinder of necessary parties, the accused was impleaded in his personal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs Pvt. Ltd.,], while the same of the Apex Court, there was difference of opinion and the matter now stands transferred to a larger bench for disposal. So, the larger bench has not yet taken any decision on the question as to whether a Director cannot be prosecuted in the absence of the Company as an accused. But, anyhow, till the Apex Court in many cases has taken a decision that the Company is not a necessary party and there is no now stands, it has to be held that a presumption not in dispute that the accused is the signatory of accused in the absence of the Company as a party, there is no impediment to prosecute the accused in the absence of the Company. 22. The cheque-Ex. P1 has been issued in favour of the complainant by name Ranga Karkera. It is not in the name of either the proprietorship concern or a firm. The evidence reveals that the complainant is doing the business in his own capacity and though the records disclose that YFT is either a partnership firm or a proprietorship concern, as the cheque has been issued in the name of the complainant and it is admitted by the accused that the complainant is doing business in his personal capacity, Hence, I do not find any im ..... X X X X Extracts X X X X X X X X Extracts X X X X
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