2019 (10) TMI 361

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.... Applicant in CC No. 11312/SS/2017; 3. It is the case of the applicant that, the Applicant has been named in connection with CC No. 11312/SS/2017 which is pending on the files of learned Metropolitan Magistrate, 33rd Court, Ballard Pier, Mumbai. The Respondent No. 1 herein has filed the aforementioned complaint against the Applicant herein under Section 138 of the Negotiable Instruments Act, 1881 (for the sake of brevity hereinafter will be referred as "said Act") for dishonour of two cheques bearing nos. 000015 for an amount of Rs. 40,00,000/(Rupees Forty lacs only) and cheque bearing no. 000016 for an amount of Rs. 47,00,000 (Rupees Forty Seven Lacs only) both drawn on HDFC Bank, Prabhadevi Mumbai. That, the learned Metropolitan Magistrate was pleased to record the verification of the authorized representative of the complainant on 15th February 2018. 4. It is further the case of the applicant that, on 15th February 2018 learned Metropolitan Magistrate, 33rd Court, Ballard Pier, Mumbai issued process against the applicant for the offence punishable under Section 138 of the said Act. That, the order of issuance of process was made returnable on 6th April 2018. Applicant has ....

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....he demand notice issued by the first Respondent under Section 138 of the N.I. Act, it doesn't seem to be any intention on the part of the first Respondent herein to joint the said company as a necessary party and it is in this circumstance that the demand notice under Section 138 of the N.I. Act itself is suffered from material defect and the order of issuance of process passed pursuant to the filing of the criminal complaint based on the demand notice is bad in law and deserves to be quashed and set aside. 8. It is submitted that, bare perusal of the complaint which is filed before the learned Magistrate would reveal that the company has not been made an accused nor the court has issued process against the company being the drawer of the said cheques, and it is in these circumstances the prosecution would fail on this ground itself. It is further submitted that, the complainant has not satisfied the basic provisions of Section 138 of the N.I. Act while taking the cognizance of the complaint against the applicant. Learned counsel invites attention of this Court to Section 138 of the N.I. Act and submits that, in case the cheque is issued to the complaint, the company is necessar....

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....urnment he had specifically mentioned that the summons was not served upon him in accordance with law since the summons which he received was without a copy of the complaint. Therefore, the application which was filed for adjournment by the applicant however, the complainant filed the application for issuance of bailable warrant and accordingly bailable warrant was issued to secure the presence of the applicant, which was absolutely unwarranted. Therefore, the relying upon the pleading in the application, grounds taken therein and annexure thereto learned counsel submits that application deserves to be allowed. 11. On the other hand, learned counsel appearing for the first Respondent submits that, applicant has signed the cheques and he is working in the capacity of managing director and therefore, merely because company is not made party to the complaint, the contention of the complainant accused that no cognizance of the said complaint can be taken, deserves to be rejected. Learned counsel in support of aforesaid contention placed reliance upon the judgment of the Delhi High Court in the case of DSC Ltd. Versus Dada Jeetu Buildcon Pvt. Ltd. Crl.M.C.4227/2014 & Crl.M.A. 14611/2....

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....of the NI Act, arraigning of the company as an accused is imperative, mainly and mostly on the basis of the vicarious liability of the directors of the company and not necessarily because the company is a juristic person and it has its own respectability. That was an additional circumstance considered by the Apex Court while holding that arraigning of a company as an accused is imperative, but the main basis for arriving at its conclusion was the vicarious liability which the directors or partners of the firm can have towards the company and hence without joining the company on the touch-stone of vicarious liability they cannot be prosecuted. 15. Therefore, the ratio laid down in the case of Aneeta Hada (supra) can be made equally applicable in the case of partnership firm also. The partners are liable and sued in their vicarious liability. Whether the partnership firm is a juristic person or not is a different aspect. What is important is that a partner of the firm is arraigned as an accused in the dragnet on the touchstone of vicarious liability, as is done in the case of directors of the company. Therefore, there is no reason at all to make any distinction in respect of....