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TMI Blog2015 (9) TMI 1746X X X X Extracts X X X X X X X X Extracts X X X X ..... he Appellant supplied goods to M/s. Shah Agencies. The 1st and 2nd Respondents carried their business in the names of M/s. Shah Enterprises and M/s. Shah Agencies. In part discharge of the liability of M/s. Shah Agencies, two cheques for Rs. 5 lakhs each, both dated 20th August, 2000, drawn on the Vysya Bank Ltd., S.P. Road, Secunderabad, signed by Respondent No. 2 as Power of Attorney Holder of Respondent No. 1, were issued on an account maintained by M/s. Shah Enterprises. 3. On presentation, both the cheques were dishonoured due to insufficient balance in the account of M/s. Shah Enterprises. A demand notice dated 8th March, 2001 was served upon Respondent Nos. 1 & 2 which was duly received by them on 13th March, 2001. The Respondents f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused had agreed to take over and discharge the liabilities of M/s. Shah Agencies. 5. The question which arose before us is whether the High Court was correct in coming to such a conclusion. The High Court duly perused the complaint, affidavit in lieu of examination-in-chief of the applicant, his cross-examination and other material documents on record. From these documents it appears that notice of demand had been addressed to the first Respondent in her capacity as a Proprietor of M/s. Shah Enterprises, and to the second Respondent in his capacity as the Power of Attorney Holder of M/s. Shah Enterprises. In the notice itself it has been stated that the goods were sold and supplied to the Proprietor of M/s. Shah Agencies. In the notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f attorney of Shah Enterprises had agreed to take over and discharge the liability of M/s. Shah Agency. Reliance is placed by the applicant on the letter at Exh. P-5. Apart from the fact that the said letter is no evidence to show that the liability of Shah Agency was taken over by Shah Enterprises, as stated earlier, the said case was never made out by the applicant in the complaint. The said case made out in the complaint is that the liability is of M/s. Shah Enterprises and not of M/s. Shah Agencies. The letter dated 7th December 2000 at Exh. P-5 is not signed by accused No. 1 who according to the applicant is the proprietor or partner of Shah Enterprises. The letter has been sent by accused No. 2 in his capacity as constituted attorney ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rm was not arrayed as an accused. He further submitted that Respondent No. 2 is liable being a signatory of both the cheques and he was incharge of M/s. Shah Enterprises. 8. On the contrary, it is submitted by the learned Counsel appearing on behalf of the Respondents that both the Trial Court as well as the High Court rightly came to the conclusion that the complaint was not maintainable against the partnership firm since cheques were issued on behalf of the first Respondent. Furthermore M/s. Shah Enterprises was never given any statutory notice nor it was arrayed as an accused before the Metropolitan Magistrate. He further submitted that a three Judge Bench of this Court in the case of Aneetha Hada v. Godfather Travel and Tours Pvt. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bare reading of Section 138 of the NI Act, the first and foremost essential ingredient for attracting a liability under this Section is that the person who is to be made liable should be the drawer of the cheque and should have drawn the cheque 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 discharge, in whole or part, of any debt or other liability. In this context, this Court in the case of Krishna Texport and Capital Markets Ltd. v. Ila A. Agrawal & Ors. AIR 2015 SC 2091, has held as under- The notice Under Section 138 is required to be given to the 'drawer' of the cheque so as to give the drawer an opportunity to make the payment and escape the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... some importance. The said phrase would embroil the persons mentioned in the first category within the tentacles of the offence on a par with the offending company. Similarly the words 'shall also' in Sub-section (2) are capable of bringing the third category persons additionally within the dragnet of the offence on an equal par. The effect of reading Section 141 is that when the company is the drawer of the cheque such company is the principal offender Under Section 138 of the Act and the remaining persons are made offenders by virtue of the legal fiction created by the legislature as per the section. Hence the actual offence should have been committed by the company, and then alone the other two categories of persons can also beco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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