9911796707
TMI Blog2024 (2) TMI 721X X X X Extracts X X X X X X X X Extracts X X X X ..... s and flow from Section 141 of the NI Act. It is apt to observe that sub-section 1 of Section 141 NI Act stipulates that if an offence is committed by a company, then every person, who at the time of commission of offence, was in charge and 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, thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such, the filing of the criminal complaint suffered from a material defect. The criminal complaint under Section 138 of the NI Act was filed only against the partners, without impleading the partnership firm and as such this Court deems it fit to exercise its power under Section 482 Cr.P.C. to quash the complaint. Petition allowed. - HON'BLE MR. JUSTICE MANOJ KUMAR OHRI For the Petitioners Through: Mr. Ashesh Lal, Mr. Apurv Lal, Mr. Raghav Parwatyar and Mr. Abhinav Anand, Advocates. For the Respondent Through: Mr. Adarsh Kr. Tiwari, Advocate. JUDGMENT (ORAL) 1. By way of present petition filed under Section 482 Cr.P.C., the petitioners seek to assail the order dated 17.07.2023 passed by learned ASJ02, S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there was no legal requirement for impleading the partnership firm. It appears that on the next date i.e. 30.09.2021, an amended memo of parties came to be filed wherein the partnership firm was arrayed as accused No. 3 and vide order dated 30.09.2021, summons were issued to the partnership firm besides the two partners. Petitioners assailed the said order before the Revisional Court. The Revisional Court, vide the impugned order, upheld the order passed by learned MM taking into account Section 24 of the Partnership Act, opining that notice to the partners shall operate as notice to the partnership firm. It was further held that since the amended memo of parties was taken on record prior to issuance of summons, there was no material i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation For the purposes of this section, (a) company means anybody corporate and includes a firm or other association of individuals; and (b) director , in relation to a firm, means a partner in the firm. (emphasis supplied) 5. It is apt to observe that sub-sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of the business of the company. (iii) Vicarious liability can be inferred against a company registered or incorporated under the Companies Act, 1956 only if the requisite statements, which are required to be averred in the complaint/petition, are made so as to make accused therein vicariously liable for offence committed by company along with averments in the petition containing that accused were in charge of and responsible for the business of the company and by virtue of their position they are liable to be proceeded with. (iv) Vicarious liability on the part of a person must be pleaded and proved and not inferred. (v) If accused is Managing Director or Joint Managing Director then it is not necessary to make specific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urse is required to issue a demand notice for payment of the amount under the cheque within 30 days of the receipt of the information from the bank of its dishonour and if the drawer fails to make such payment within 15 days of the receipt of the said notice, then the offence under Section 138 NI arises. In the present case, no such demand notice was issued to the partnership firm and as such, the filing of the criminal complaint suffered from a material defect. Both the courts below have committed a grave illegality in permitting the complainant to file an amended memo of parties to overcome this material defect. Accordingly, both the impugned orders are set aside. This Court is also fortified in its conclusion by the decision of the Apex ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
