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TMI Blog2025 (3) TMI 838X X X X Extracts X X X X X X X X Extracts X X X X ..... EME COURT] that, when a company has not been arraigned as a party, no proceeding can be initiated against it, even where vicarious liability is fastened under certain statute. In Aneeta Hada's Case [2012 (5) TMI 83 - SUPREME COURT] the Court held that the words ' as well as the company' appearing in the section make it absolutely un mistakably clear that when the company can be prosecuted, then only the persons mentioned in the other categories could be vicariously liable for the offence subject to the averments in the petition and proof thereof. Needles to say that in terms of explanation to section 141, "company" means any body corporate and includes a firm or other association of individuals and "director" in relation to a firm means a partner of a firm and as such the present case clearly attracts the rigour of section 141 of the N.I. Act. The question of remanding the case back to the trial court giving opportunity to the complainant to amend the complaint and to continue the proceeding after adding the partnership firm as an accused, also does not arise in the present context as the defect made in the complaint is an incurable defect, in view of the fact that no notice und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anker for encashment, but the said cheque was dishonored on the ground of "insufficient fund". After getting the said information from his banker on 10.04.2014, the complainant sent a demand notice to the respondent for making payment of cheque amount, but inspite of receipt of legal notice, the respondent herein failed and neglected to pay the amount and finding no other alternative the complainant/appellant initiated proceeding under section 138 of the N.I. Act. 3. Learned Trial court by its judgment dated 29.12.2015 came to a finding that the presumption is in favour of complainant, which has not been rebutted by the accused person and as such the respondent/accused was convicted under section 138 of N.I. Act. The relevant portion of the finding of the Trial court may be reproduced below:- "on thing is very clear from the evidence on record that the accused asked the complainant to do the work of painting at Raghgunathpur Thermal Power plant, DPSCL project. It is also admitted that he did not make payment to the complainant as the complainant did not complete the work to the satisfaction of DPSCL. But no evidence was brought by the accused to show that the work was to be done ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t passed by the court below the appellant/complainant argued that though the opposite party accused had taken the specific plea that the amount involved in the cheque is not legally enforceable debt since under the terms and conditions mentioned in the deed of agreement marked as exhibit-A, the payment was subject to approval of the work by the engineer DPSCL and the engineer DPSCL did not approve the work, but the respondent herein could not produce any document that the work done by the appellant was not approved by the engineer. It has been further argued that the agreement marked exhibit-A was not made in between the appellant and the respondent but said agreement was entered into in between appellant and one Tapas Kumar Mondal, and as such the conditions imposed therein is not binding in nature, so far as present accused is concerned. He further argued that though the impugned cheque was signed by the present respondent and one Ganesh Mahato from their joint bank Account, but issuance of cheque by joint signatories cannot be a proof of a joint business, in absence of other relevant documents. Ld. court below has wrongly came to a finding that there was an agreement between the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PW1 also admitted that he applied for a work to Kishan Construction and an agreement was reached in between him and the Kishan Construction and the said agreement is marked as exhibit-A. The respondent as DW1 stated during cross examination that there is written partnership deed in respect of their partnership business which was not denied by the complainant by putting any suggestion. The said respondent/DW1 also specifically denied that it is not a fact that he gave the assignment to the complainant or handed over impugned cheque after completion of the said assignment. 8. During cross examination of aforesaid Tapas Kumar Mondal who signed the agreement on behalf of the Kishan Construction has specifically stated while answering question put to him by the complainant during cross examination that he does not know from which date Ganesh and Kishan started working in partnership. During the entire evidence no suggestion was put to the witnesses that there does not exist any partnership namely Kishan construction of which petitioner herein is a partner or there exists no such partnership deed. 9. In view of above facts and circumstances, it clearly reveals that the offence, if any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who have committed offence under section 138 of N.I. Act, if any, has not been made a party and the respondent/partner only has been made as an accused. In Sarad Kumar Sanghi Vs. Sangita Raney reported in (2015) 12 SCC 781 the supreme Court has specifically held relying upon Aneeta Hada Vs. Godfather Travels and Tours (p) Ltd, reported in (2012) 5 SCC 661 that, when a company has not been arraigned as a party, no proceeding can be initiated against it, even where vicarious liability is fastened under certain statute. 13. In Aneeta Hada's Case (Supra) the Court held that the words ' as well as the company' appearing in the section make it absolutely un mistakably clear that when the company can be prosecuted, then only the persons mentioned in the other categories could be vicariously liable for the offence subject to the averments in the petition and proof thereof. 14. In para 59 of the judgment court held:- 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dment making it a deeming fiction. Here also, the principle of "alter ego", was applied only in one direction, namely, where a group of persons that guide the business had criminal intent, that is to be imputed to the body corporate and not the vice versa. Otherwise, there has to be a specific act attributed to the Director or any other person allegedly in control and management of the company, to the effect that such a person was responsible for the acts committed by or on behalf of the company. 16. Needles to say that in terms of explanation to section 141, "company" means any body corporate and includes a firm or other association of individuals and "director" in relation to a firm means a partner of a firm and as such the present case clearly attracts the rigour of section 141 of the N.I. Act 17. The question of remanding the case back to the trial court giving opportunity to the complainant to amend the complaint and to continue the proceeding after adding the partnership firm as an accused, also does not arise in the present context as the defect made in the complaint is an incurable defect, in view of the fact that no notice under section 138 of N.I. Act was served upon t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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