9911796707
TMI Blog2022 (5) TMI 900X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs that the petitioner impleaded the accused company as a party. In the present case, the accused Company was made a party to the complaint case without being furnished a notice, thereby, without it an opportunity to defend itself. In such a situation, had the Company been held guilty of the offence under Section 138 of the NI Act, it would have been without giving it a fair an equitable opportunity of defending itself, since, the fact remains that it was never intimated about the dishonour of the cheque, as per requirement of the Act. The perusal of the cheque also reveals that although it was signed by the respondent, it bears the name of the accused Company and not the respondent, hence, being a separate entity, the prime liability also pertained to the Company as the drawer of the cheque. At the outset, the complaint against the Company, hence, was not maintainable. Since, the drawer of the cheque was the accused Company, solely on the ground that the respondent had signed the cheque, a liability under Section 138 of the NI Act did not arise against him. The complaint was prima facie not maintainable against the Company as drawer of the cheque, the liability towards the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that the learned ASJ has committed an error by presuming the cheque in question was issued on of the accused no.2/Company, namely, Shree Krishna Vanaspati Pvt. Ltd., while deciding the revision petition. The respondent avoided the trial initiated against him and the accused company and instead approached the revisional court assailing the summoning order on the sole ground that the company was principally liable being the drawer of the cheque and yet it was not made a party. It is submitted that the respondent was not able to establish the status and role in the accused Company or in what capacity he issued the cheques in question. The question as to who was the drawer of the cheque could only be adjudged at the stage of trial. 4. It is further submitted that the learned ASJ did not appreciate the letter dated 18th December 2014 sent by the respondent to the husband of the petitioner, which was a conclusive proof to the effect that the respondent drew the cheque in question with the intention to defraud the petitioner. It is submitted that the learned ASJ presumed the fact that the respondent was authorised to make statements on behalf of the accused Company. The lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2015) 8 SCC 28, amongst others to give force to his arguments. 9. In rejoinder, it is submitted by the learned counsel for the petitioner that the judgment of Aneeta Hada (Supra), which the respondent has relied upon, is not applicable since, in the judgment Aneeta Hada was an office bearer in the company and not its director, the cheques issued in the case was against the liability of the company and not against her personal liability and the fact was proved in the trial after leading evidence in the matter, hence, the facts in the judgment and the matter at hand are distinguishable. 10. Heard learned counsel for the parties and perused the record, including the impugned order passed by the learned ASJ. 11. In the instant petition, the primary question to be decided who was the drawer of the cheque in question. Although the cheque was the signed by the respondent, the cheque issued to the petitioner bore the name of the accused Company as the account holder, being a separate entity from its members, and not of the respondent. Moreover, as a requirement under Section 138 of the NI Act, the holder of the cheque that is dishonoured has to make a demand for the payment of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s which have to be satisfied before the liability can be extended to officers of a company. Since the provision creates criminal liability, the conditions have to be strictly complied with. The conditions are intended to ensure that a person who is sought to be made vicariously liable for an offence of which the principal accused is the company, had a role to play in relation to the incriminating act and further that such a person should know what is attributed to him to make him liable. In other words, persons who had nothing to do with the matter need not be roped in. A company being a juristic person, all its deeds and functions are the result of acts of others. Therefore, officers of a company who are responsible for acts done in the name of the company are sought to be made personally liable for acts which result in criminal action being taken against the company. It makes every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of business of the company, as well as the company, liable for the offence. The proviso to the subsection contains an escape route for persons who are able to prove that the offence w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or is also liable being in charge of its affairs. 54. True interpretation, in my opinion, of the said provision would be that a company has to be made an accused but applying the principle of lex non cogit ad impossibilia i.e. if for some legal snag, the company cannot be proceeded against without obtaining sanction of a court of law or other authority, the trial as against the other accused may be proceeded against if the ingredients of Section 138 as also Section 141 are otherwise fulfilled. In such an event, it would not be a case where the company had not been made an accused but would be one where the company cannot be proceeded against due to existence of a legal bar. A distinction must be borne in mind between cases where a company had not been made an accused and the one where despite making it an accused, it cannot be proceeded against because of a legal bar. 13. What is derived from the discussion made in the aforesaid judgement is that if a company is a drawer of the cheque, it is a necessary party to proceedings initiated under Section 138 of the NI Act. The liability of a private person, in his capacity of a Director or any other authority to act on behalf of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no grievance of that fact on the ground that Dakshin did not make any grievance of such summoning. It is always open to Dakshin to raise the defence that the initiation of prosecution against it is barred by limitation. Dakshin need not necessarily challenge the summoning order. It can raise such a defence in the course of trial. 21. This Court in Aneeta Hada [Aneeta Hada v. Godfather Travels Tours (P) Ltd., (2012) 5 SCC 661 : (2012) 3 SCC (Civ) 350 : (2012) 3 SCC (Cri) 241] (SCC p. 668, para 1), had an occasion to examine the question whether an authorised signatory of a company would be liable for prosecution under Section 138 of the Negotiable Instruments Act, 1881 (for brevity the Act ) without the company being arraigned as an accused and held as follows : (SCC p. 688, para 59) 59. In view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the dragnet on the touchstone of vicarious liability as the same has been stipulated in the provision itself. Yet the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be proved for securing the punishment of the person who drew a cheque that eventually got dishonoured is that the payee of the cheque did in fact comply with each one of the steps contemplated under Section 138 of the Act before initiating prosecution. Because it is already held by this Court that failure to comply with any one of the steps contemplated under Section 138 would not provide cause of action for prosecution . Therefore, in the context of a prosecution under Section 138, the concept of taking cognizance of the offence but not the offender is not appropriate. Unless the complaint contains all the necessary factual allegations constituting each of the ingredients of the offence under Section 138, the Court cannot take cognizance of the offence. Disclosure of the name of the person drawing the cheque is one of the factual allegations which a complaint is required to contain. Otherwise in the absence of any authority of law to investigate the offence under Section 138, there would be no person against whom a court can proceed. There cannot be a prosecution without an accused. The offence under Section 138 is person specific. Therefore, Parliament declared under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
