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TMI Blog2024 (2) TMI 721X X X X Extracts X X X X X X X X Extracts X X X X ..... rial Court has been upheld. 2. Briefly, the facts are that the respondent/complainant had initiated proceedings under Section 138 of the Negotiable Instruments Act, 1881 (hereafter, 'the NI Act') thereby alleging that a loan of Rs. 4.5 lacs was given to the petitioner Nos. 2 and 3/accused persons for their project. Towards settlement of the said account, the accused persons issued a cheque of Rs. 2.95 lacs, which when presented for encashment, was dishonoured with the remarks 'insufficient funds'. A legal notice was issued on 03.07.2021 to the accused persons, whereafter when the liability was not discharged, the aforesaid criminal complaint came to be filed. 3. The issue arising in the present petition is that while the cheque in questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed from the account of the partnership firm and signed by both the partners. Thus, the liability of the partners is vicarious and flow from Section 141 of the NI Act. Before proceeding further, this Court deems it apposite to reproduce Section 141 of the NI Act, which reads as under :- "141. Offences by companies. - (1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was responsible to the company for the conduct of its business, as well as company itself, would be guilty of the offence. The first proviso, which is in the nature of exception, provides that in case such a person is able to prove that offence was committed without his knowledge or that he exercised due diligence to prevent the commission of offence, then such a person would not be liable for punishment. The onus to satisfy the said requirement is on the person alleging/stating the same. However, this does not take away the initial onus cast on the complainant to establish the requirements of sub-section 1 of Section 141. The law in this regard was crystallised in National Small Industries Corporation Limited v. Harmeet Singh Paintal (2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ques on behalf of the company then also it is not necessary to make specific averment in complaint. (vii) The person sought to be made liable should be in- charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a Director in such cases. 6. The issue whether any person under Section 141(1) can be proceeded against in the absence of a company, came up before the Supreme Court in Aneeta Hada v. Godfather Travels & Tours (P.) Ltd. (2012) 5 SCC 661, wherein a three Judges Bench held that for maintaining prosecution under Section 141, arraigning of company as an accused is imperative. The other categories of offenders can only be broug ..... X X X X Extracts X X X X X X X X Extracts X X X X
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