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TMI Blog2020 (8) TMI 899X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent for the offences punishable under Section 138 of Negotiable Instruments Act. The impugned complaint is lodged by the power of attorney on behalf of the Managing Director of Amsak Cranes Private Limited. The alleged cheque was issued by the partner on behalf of Sanjey Heavy Engineering partnership firm. Admittedly, the respondent did not issue any statutory notice to the partnership firm and also failed to include the partnership firm as an accused in the complaint. When it being so, the complaint itself is not maintainable without impleading the partnership firm as an accused. The Hon'ble Supreme Court of India as well as this Court repeatedly held in a catena of judgments that the complaint is not maintainable without partnershi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery same reason, namely "payment stopped by drawer". After causing statutory notice to the accused initiated proceedings for the offences punishable under Section 138 of NI Act. 5. On perusal of records, the cheque was issued on behalf of partnership firm, namely Sanjey Heavy Engineering partnership firm. Whereas, the respondent caused statutory notice only to the partner who signed the cheque, namely the petitioner herein. Admittedly, the respondent did not issue any notice to the partnership firm and also did not implead the partnership firm as an accused in the complaint lodged for the offences under Section 138 of NI Act. Even according to the respondent, the partnership firm purchased materials and issued cheque towards part payment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the touchstone of vicarious liability as the same has been stipulated in the provision itself. We say so on the basis of the ratio laid down in C.V. Parekh (supra) which is a three-Judge Bench decision. Thus, the view expressed in Sheoratan Agarwal (supra) does not correctly lay down the law and, accordingly, is hereby overruled. The decision in Anil Hada (supra) is overruled with the qualifier as stated in paragraph 51. The decision in Modi Distilleries (supra) has to be treated to be restricted to its own facts as has been explained by us hereinabove. 6. He also relied upon the judgment in the case of Himanshu Vs. B.Shivamurthy and another reported in (2019) 3 SCC 797, wherein the Hon'ble Supreme Court of India has held as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the cheque, as the case may be, ought to make 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 cheque as unpaid. The third condition is that the drawer of such a cheque should have failed to make 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. It is only upon the satisfaction of all the three conditions mentioned above and enumerated under the proviso to Section 138 as Clauses (a), (b) and (c) thereof that an offence Under Section 138 can be said to have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e as unpaid.... 11. In the present case, the record before the Court indicates that the cheque was drawn by the Appellant 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. 13. In the absence of the company being arraigned as an Accused, a complaint against the Appellant was therefore not maintainable. The Appellant had signed the cheque as a Director of the company and for and on its behalf. Moreover, in the absence of a notice of demand being served on the company and without compliance with the proviso to Section 138, the High Court was in error in holding that the compa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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