9911796707
TMI Blog2024 (7) TMI 454X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 3, stating her to be the Authorized Signatory. 3. In the complaint, the respondent/complainant has averred as under: "4. That the Accused No.1, proprietorship firm represented through the Accused Nos.2 & 3 claims to be engaged in distribution and marketing of Indian Made Foreign Liquor (I.M.F.L) under the name and style "M/s Hillstar Distributors" having its office at 218, Vardhman Industrial Estate, Bahadurpur, Saini, Roorkee, Haridwar, Uttarakhand-249402 and branch office at H.No. 56/K, Madhuban Colony, Baghpat Road, Meerut, Uttar Pradesh-250002. 5. That the Accused No.2 on behalf of the Accused No.1 approached the Complainant and represented himself to be the Proprietor and Authorized Signatory of the Accused no.1 and offered their services for promotion, marketing and maximizing the sale of the Complainant's brands namely Dimpy Whisky, Black Bull XXX Rum and Golden Barrel Reserve Whisky bottled at the Complainant's Bilari unit situated in Uttar Pradesh for the territory of Uttarakhand through the Bonded Ware House of the Accused situated at Haridwar. 6. That the Complainant under bonafide belief and good faith agreed to take the services of the Accused No.1 and also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts proprietor and the signatory of the cheque, that is, the accused no.2, can face the prosecution. 5. On the other hand, the learned counsel for the respondent submits that the petitioner herein had also signed the agreement, that is, the distributorship agreement on behalf of the accused no.1 with the respondent. He submits that the respondent was not aware if the accused no.1 is a proprietorship concern and what is the relationship of the petitioner with the accused no.1. He submits that the petitioner had represented herself to be the authorized signatory on behalf of the accused no.1. 6. I have considered the submissions made by the learned counsels for the parties. 7. Section 138 of the NI Act reads as under: "138. Dishonour of cheque for insufficiency, etc., of funds in the account.- Where any cheque drawn by a person 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 the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it excee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gence to prevent the commission of such offence: Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter. (2) Notwithstanding anything contained in sub-section (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 any body 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 ) 10. The provision of Section 141 of the NI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... If Accused 1 was not a company within the meaning of Section 141 of the Negotiable Instruments Act, the question of an employee being proceeded against in terms thereof would not arise. The respondent was aware of the difference between a "partnership firm" and a "business concern" as would be evident from the fact that it described itself as a partnership firm and Accused 1, as a business concern. Significantly, the respondent deliberately or otherwise did not state as to in which capacity the appellant had been serving the said business concern. It, as noticed hereinbefore, described him as in-charge, Manager and Director of Accused 1. A person ordinarily cannot serve both in the capacity of a Manager and a Director of a company. xxxx 14. We, keeping in view the allegations made in the complaint petition, need not dilate in regard to the definition of a "company" or a "partnership firm" as envisaged under Section 34 of the Companies Act, 1956 and Section 4 of the Partnership Act, 1932 respectively, but, we may only note that it is trite that a proprietary concern would not answer the description of either a company incorporated under the Companies Act or a firm within the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
