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TMI Blog2023 (12) TMI 1202X X X X Extracts X X X X X X X X Extracts X X X X ..... ors in the absence of the Company - in view of the binding precedents of the Hon'ble Supreme Court, the submission that the prosecution of the Company is necessary before prosecuting its office bearers has to be accepted as correct. It is an admitted position that the Himalayan Mahila Avam Jan Kalyan Sansthan is registered under the Societies Registration Act. Section 14 of the H.P. Societies Registration Act provides that every Society shall be a body corporate by the name under which it is registered having perpetual succession and a common seal - This Section specifically provides that the Society shall be a body; hence, the submission that the Society is not a body corporate is not acceptable. The complainant could not have filed a complaint against the petitioner and respondent no. 3 without impleading the Company to an accused. The prosecution of the petitioner in the absence of the Company is bad - the complaint titled Mukesh Kumar vs Anjana Kumari and another quashed qua the petitioner pending before the learned Additional Chief Judicial Magistrate, Sarkaghat against the petitioner and the consequent proceedings arising out of the same are ordered to be quashed qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... well as the summoning order be quashed. 4. I have heard Mr R.L. Chaudhary, learned counsel for the petitioner-accused, Mr. R.P. Singh, learned Deputy Advocate General, for respondent no. 1-State, Mr Ajay Chandel learned counsel for the respondent No. 2/complainant and Mr P.K. Bhatti learned counsel for the respondent no. 3. 5. Mr R.L. Chaudhary learned counsel for the petitioner submitted that the Society is a body corporate having its independent existence. As per the complaint, the loan was taken by the Society and the cheque was issued by the society. The Society is the primary accused but it was not arrayed as a party. The complaint against the petitioner and the accused no. 2 is not maintainable in the absence of a Company. Therefore he prayed that the present petition be allowed and the complaint be quashed. 6. Mr. Ajay Chandel, learned counsel for the complainant submitted that the Society is not a body corporate and the provisions of Section 141 of the Negotiable Instruments Act apply only to the body corporate; therefore, he prayed that the present petition be dismissed. 7. Mr. R.P. Singh learned Deputy Advocate General for the respondent-State submitted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... find that after analysing all the provisions and having noticed the different decisions rendered by this Court, the threejudge Bench arrived at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning a company as an accused is imperative. Hence, in this case, we find no reason to refer the matter to the larger Bench. 12. In the present case, only the appellant was impleaded as an accused. In that view of the matter, we are of the view that the complaint with respect to the offence under Section 138 read with Section 141 of the Act was not maintainable following the decision 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]. We set aside the judgment dated 17-4-2010 passed by the trial court, the order dated 27-5-2011 passed by the appellate court and the impugned judgment dated 9-11- 2012 passed by the High Court of Orissa, Cuttack in Charanjit Pal Jindal v. L.N. Metalics [Charanjit Pal Jindal v. L.N. Metalics, Criminal Revision No. 467 of 2011, decided on 9-11-2012 (Ori)]. The appellant stands acquitted. 12. This position was reiterate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. We have already opined that the decision in Sheoratan Agarwal runs counter to the ratio laid down in C.V. Parekh which is by a larger Bench and hence, is a binding precedent. On the aforesaid ratiocination, the decision in Anil Hada 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 emphasise, 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. xxxxxxxxx 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 drag-net on 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 which is a three-judge Bench decision. Thus, the view expressed in Sheoratan Agarwal does not correctly lay down the law and, accordingly, is hereby overruled. The decision in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Himalayan Mahila Avam Jan kalyan Sanstha is not a Company and these judgments do not apply to the present case. This submission is not acceptable. Explanation to Section 141 (2) provides that a Company means any body corporate and includes a firm or other association of individuals. Therefore, the term Company is not restricted to only those entities which are registered under the Companies Act but will include any body corporate. 17. It is an admitted position that the Himalayan Mahila Avam Jan Kalyan Sansthan is registered under the Societies Registration Act. This fact was mentioned in para 1 of the complaint. Section 14 of the H.P. Societies Registration Act provides that every Society shall be a body corporate by the name under which it is registered having perpetual succession and a common seal, It reads as under : 14. Society to be a body corporate. Every Society shall be a body corporate by the name under which it is registered having perpetual succession and a common seal, and shall have powers to acquire, hold and dispose of property, both movable and immovable, enter into contract, institute and defend suits and other legal proceedings and to do all ot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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