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TMI Blog2012 (9) TMI 1228X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Rathaur filed a complaint against the applicant for the offence under Section 138 of the Act with the allegations that the accused applicant was partner of V.I.P. Financiers Firm (Regd.) situated at Agarwal Market, Railway Road, Thana Banna Devi, District Aligarh and a sum of Rs. 50,000/- was given as loan to the said firm on 4.1.2000 @ 2 per cent monthly interest by the opposite party No. 2, for which a receipt was also given on 4.1.2000 itself. It is alleged that for the last one year as the accused did not pay any interest, the complainant demanded his money back towards which the accused gave him a cheque dated 4.1.2007 of account No. 3107, Canara Bank, Apsara Complex, Main Branch Aligarh with the assurance that the said cheque shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cution cannot be maintained as against the applicant. It has also been argued that the applicant was only partner of the said firm and it is not averred in the complaint that at the time the offence was committed, he was in charge of and was responsible for conduct of business of the firm. Hence the requirement of Section 141 of the Act is not satisfied for the purposes of lodging a complaint against the applicant for an offence under Section 138 of the Act. It is also contended that the alleged notice was not served upon the applicant but according to the complaint itself, the information of notice was given at the house of the applicant but not at the office of the firm. 4. In support of his contentions, learned counsel for the appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act, arraying of a company as an accused is imperative. 7. The Hon'ble Apex Court in its verdict S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla and another (supra) has held that necessary averments ought to be contained in a complaint before a person is subjected to criminal process. A liability under Section 141 of the Act is sought to be fastened vicariously on a person connected with a company, the principal accused being the company itself. It is a departure from the rule in criminal law against vicarious liability. Under Section 141 what is required is that the persons who are sought to be made criminally liable, should be, at the time of offence was committed, in charge of and responsible to the company for the conduct of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said Act. To decide the controversy at issue, both the provisions of Sections 138 and 141 of the Act are relevant, which are quoted below: 138. Dishonour of cheque for insufficiency, etc., of funds in account.-- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liable to be proceeded against and punished accordingly: Provided that nothing contained this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence. Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter. (2) Notwithstanding anything contained in sub-section, where any offence under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt in the aforesaid verdict of Aneeta Hada v. God Father Travels and Tours Pvt. Ltd. (supra) has held that for maintaining prosecution under Section 141 of the Act, arraying of a company as an accused is imperative. 11. Hon'ble Apex Court in the aforesaid verdict S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla and another (supra) has been pleased to hold that the necessary averment in the complaint is to be made that at the time the offence was committed, a person accused was in charge of, and responsible for the conduct of the business of the company. It is further observed that liability under Section 141 of the Act is sought to be fastened vicariously on a person connected with a company, the principal accused being the company its ..... X X X X Extracts X X X X X X X X Extracts X X X X
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