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TMI Blog2021 (6) TMI 1137X X X X Extracts X X X X X X X X Extracts X X X X ..... ued against the firm within the time prescribed, the respondent has no sufficient cause for invoking the jurisdiction of this court to implead the firm as an accused in exercise of powers under Section 142 of the N.I. Act. There can be no vicarious liability unless there is a prosecution against the firm. The vicarious liability gets attracted when the condition precedent laid down in Section 141 of the N.I. Act can satisfy. Thus, it can be safely concluded that if the prosecution proceedings against the firm were not taken by the complainant for the offence under Section 138 of the N.I. Act, it is certainly a bar for proceeding against the other person coming within the ambit of sub-sections (1) and (2) of Section 141 of the N.I. Act. In view of the above reasoning and discussion, the conviction and sentence concurrently passed by the two courts below are contrary to the dictum laid down by the Apex Court in Aneeta Hada [ 2012 (5) TMI 83 - SUPREME COURT ] and, therefore, cannot be sustained. The conviction and sentence are, accordingly, set aside. The conviction and sentence are, accordingly, set aside. The Crl.R.P. is allowed. The revision Petitioner is found not guilty of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the offence allegedly committed by the first accused under S. 138 of the N.I. Act were read over to him, whereto he pleaded not guilty and claimed for trial. Thereafter, P.Ws. 1 to 4 were examined and marked Exts. P1 to P8 on the complainant's side. On conclusion of the recording of the complainant's evidence, the accused was questioned under S. 313(1)(b) of the Code of Criminal Procedure (hereinafter referred to as 'the Cr.P.C.') by the trial court for the purpose of enabling him to explain any circumstance appearing in the evidence against him whereby the revision petitioner/accused denied all the incriminating circumstances appearing in the evidence against him and claimed innocence. D.W. 1 was examined on the side of the accused and duly exhibited Exts. D1 to D5. 4. The first appellate court, on re-appraisal of the evidence on record, affirmed that the complainant proved that Ext. P1 cheque was issued for a legally enforceable debt and it was for the revision petitioner/accused to discharge his burden to rebut the presumption under Sections 118 and 139 of the N.I. Act. 5. After considering the evidence adduced by the parties and hearing the parties, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder S. 138 of the N.I. Act. Thus, it is argued that when the company is in existence, the company is the principal offender and its non-impleadment will create a dent in the prosecution case. Relying on the decision in Aneeta Hada v. M/s. Godfather Travels and Tours Pvt. Ltd. (2012 (2) KLT 736 (SC)), the learned counsel for the revision petitioner/accused contended that an authorised signatory of a company cannot be made liable for the prosecution under S. 138 of the N.I. Act without the company being arrayed as an accused. 7. On the other hand, the learned counsel for the complainant would contend that the account in question involved in this case is not relating to the firm and it is an account maintained by the first accused separately. The learned counsel for the complainant further contended that the firm is properly represented and the first accused defended the action in his capacity as the Managing Partner of the firm knowing fully well that he has been defending the firm itself. In other words, it was contended that the company, being a legal entity, acts to with its directors or other officers to sign and issue the cheque and intimate the Bank to honour the cheque, if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheque was issued from the old account No. 62228. Ext. D5 statement of account would show that the new account number is 57030066065. Ext. D1 account opening form shows that while opening a new account by Sri K. Velayudhan Pillai in the State Bank of Travancore, Broadway, Ernakulam Branch, on 13.8.2009, his existing number 57030066065 is stated specifically on Page No. 5. As per the account opening form details, it is obligatory on the part of the customer to disclose the account number if he is already a customer of the Branch. Thus, it is clear that, the core banking number 57030066065 corresponding to old account number 62228 of Sri K. Velayudhan Pillai is the subject matter of Ext. P1 cheque. The deed of partnership produced by D.W. 1 would show that it was executed way back in 1998. 12. The trial court and the appellate court concurrently expressed the view that even if the prosecution proceedings against the firm were not taken or could not be continued, it is no bar for proceeding against accused 1 and 2 and the partners of the firm falling within the purview of sub-sections (1) and (2) of S. 141 of the N.I. Act. The trial court held that the accused cannot contend that h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Anil Hada (supra) has to be treated as not laying down the correct law as far as it states that the director or any other officer can be prosecuted without impleadment of the company. Needless to emphasize, the matter would stand on a different footing where there is some legal impediment and the doctrine of lex non cogit ad impossibilia gets attracted. 14. The Apex Court in Aneeta Hada (supra) had occasion to examine the question whether an authorised signatory would be liable for prosecution under S. 138 of the N.I. Act without company being arraigned as an accused and held as follows:- 43. In view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under S. 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. 15. Thus the liability of the revision petitioner is only statutory because of his legal status as the Managing Partner of the firm. Every person signing the cheque on behalf of the firm/company on whose account a cheque is dra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the date of receipt of notice. Admittedly, no notice was issued to the firm as contemplated under the Act before lodging the complaint. Needless to say that this failure to comply with any one of the steps contemplated under S. 138 of the N.I. Act would not provide cause of action for the prosecution. Hence the firm cannot be held liable at this stage. Since no statutory notice was issued against the firm within the time prescribed, the respondent has no sufficient cause for invoking the jurisdiction of this court to implead the firm as an accused in exercise of powers under S. 142 of the N.I. Act. Hence the legal principles formulated in N. Harihara Krishnan v. J. Thomas (2017 (4) KLT SN 37 (C. No. 41) SC : (2018) 3 SCC 663) and Radhakrishnan v. State of Kerala (2018 (1) KLT OnLine 3176 : 2018 (4) KHC 262) are not applicable in this case. Although S. 142 of the Act authorises the court to condone the delay in appropriate case, this court finds no reason to condone the delay in this case. On the face of Ext. P1 cheque, it is clear that it was drawn on account of the firm. Admittedly, the respondent failed to issue notice to the firm as contemplated under Clause (b) of the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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