TaxTMI 
TaxTMI 
2019 (4) TMI 1628
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.... transaction between the complainant and the accused persons. Whenever the complainant had an amount with him, he used to keep the said amount deposited with accused persons. In the year 2006-07, the complainant had deposited an amount of Rs. 22,00,000/(rupees twentytwo lakhs only) with accused under different cheques of Rs. 1,00,000/( rupees one lakh only) each. Accused agreed to pay the interest on amount of deposit at the rate of 24 per cent per annum. In the year 2006-07, accused repaid entire amount along with interest. 3. In the year 2007-08, the complainant had deposited an amount of Rs. 30,00,000/(rupees thirty lakhs only) with the accused. Accused issued 30 cheques of Rs. 1,00,000/(rupees one lakh only) each in favour of the complainant. Accused agreed to pay the interest at the rate of 24 per cent per annum. The account of complainant was operating under the signature of the father of complainant Bhagchandji Rathi who is holding Power of Attorney for the complainant. 4. Accused No.2 requested the complainant that he would make payment of five cheques of Rs. 1,00,000/(rupees one lakh only) each. Accordingly, complainant returned back those five cheques. Accused made pay....
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.... 2012 and Criminal Appeal No. 380 of 2014 respectively. He has submitted that the judgment of Apex Court in the case of Aneeta Hada.v. Godfather Travels and Tours Private Limited (cited supra), is wrongly interpreted by the Sessions Court and, therefore, prayed to allow the revision and appeal against acquittal. Shri Sarda, learned Counsel for the applicant has submitted that the revisions filed by accused persons against the judgment of Sessions Court in respect of remand are not maintainable because the order of first appellate Court directing retrial after reversal of findings and sentence of trial Court is not an order of acquittal and, therefore, they have no right to ask for leave to file revision. In support of his submission, learned Counsel for the applicant has pointed out the decision of Calcutta High Court in the case of Sm. Binapani Haldar.v. Samsuddin Ahmed and others (reported in AIR 1962 CALCUTTA, 191). 9. It is argued on behalf of the respondents (applicants in Criminal Revision Application Nos.114 of 2015 and 153 of 2015) by Shri S.V. Sirpurkar and Shri A.C. Dharmadhikari, learned Counsel respectively that the learned Additional Sessions Judge has held that the c....
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....e for the offence and, thereafter, proceeded to state that if the company is not prosecuted due to legal snag or otherwise, the prosecuted person cannot, on that score alone, escape from the penal liability created through the legal fiction and this is envisaged in Section 141 of the Act. If both the paragraphs are appreciated in a studied manner, it can safely be stated that the conclusions have been arrived at regard being had to the obtaining factual matrix therein. 50. However, it is noticeable that the Bench thereafter referred to the dictum in Sheoratan Agarwal and eventually held as follows : (Anil Hada case SCC p.10, para 21) "21. We, therefore, hold that even if the prosecution proceedings against the company were not taken or could not be continued, it is no bar for proceeding against the other persons falling within the purview of subsections (1) and (2) of Section 141 of the Act."" 12. From the careful reading of the judgment of Hon'ble Apex Court in the case of Aneeta Hada .v. Godfather Travels and Tours Private Limited (cited supra), it is clear that the company/firm should be made an accused. In the complaint filed by the complainant before the JMFC, the com....
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....y arises on account of conduct, act or omission on the part of a person and not merely on account of holding an office or a position is a company." 15. In the present case, accused Nos.3 and 4 were not the incharge and responsible for the conduct and business of the company. Accused No.2 issued cheques in favour of the complainant. He was the responsible persons for the act of accused No.1/Firm. He was managing the affairs of the firm/accused No.1. Therefore, learned JMFC has rightly convicted accused No.2 and acquitted accused Nos.3 and 4. Hence, the judgment of JMFC acquitting accused Nos.3 and 4 is perfectly legal and correct. Therefore, Criminal Appeal No. 380 of 2014 is liable to be dismissed. 16. Shri S.V. Sirpurkar, learned Counsel for the applicant in Criminal Revision Application No. 114 of 2015 has submitted that the learned Additional Sessions Judge has come to the conclusion that the judgment passed by JMFC is illegal and, therefore, quashed and set aside. He has further submitted that there was no necessity for the first appellate Court to remand the matter for retrial. In support of his submission, he has pointed out the judgment of Apex Court in the case of Mohd. H....