TaxTMI 
TaxTMI 
2020 (6) TMI 589
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....d his money, the petitioner started procrastinating and after insisting, the petitioner has given a cheque No. 000051 dated 25.11.2017 amounting to Rs. 2,00,000/- to the respondent. On 18.01.2018, when the respondent submitted the said cheque before the bank, same was dishonoured due to "stop payment" by the petitioner. Thereafter, the respondent sent a legal notice to the petitioner, even then he did not make payment, hence, the respondent filed a complaint before JMFC, Narsinghpur. 3. Learned counsel for the petitioner submits that according to complaint, the respondent has given the amount in question to the petitioner for business purpose and the petitioner has given the said cheque under the capacity of chairman of company namely 'Well Built Industry India Ltd.' but the respondent has not impleaded the company as a party in the complaint case. The respondent/complainant also failed to specify the role of present petitioner on behalf of the company. Hence, in view of the provision of Section 141 N.I. Act, the proceedings under Section 138 N.I. Act are bad in law and deserves to be quashed. With the aforesaid, he prays to allow this petition. In support of his contention, he ha....
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.... it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.]" 8. Further, if such offence is committed by the companies, Section 141 of the Act provides as under:- "141 Offences by companies. - (1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be li....
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....12 (5) SCC 661, it has been held that when the company would be prosecuted then only the persons mentioned in the other categories could be vicariously liable for the offence subject to the averments made in the complaint. To summarize, there cannot be any vicarious liability unless there is prosecution against the company. Further, in the case of Anil Gupta Vs Star India Pvt. Ltd. reported in (2014) 10 SCC 373 after following the Aneeta Hada's case, the Hon'ble Apex Court has held as under :- "13. In the present case, the High Court by impugned judgment dated 13.08.2017 held that the complaint against respondent no.2-Company was not maintainable and quashed the summon issued by the Trial Court against respondent no.2-Company. Thereby, the Company being not a party to the proceedings under Section 138 read with Section 141 of the Act and in view of the fact that part of the judgment referred to by the High Court in Anil Hada Vs. Indian Acrylic Ltd, (2000) 1 SCC 1 has been overruled by three Judge Bench of this Court in Aneeta Hada V. godfather Travels and Tours (p) Ltd, (2012) 5 SCC 661, we have no other option but to set aside the rest part of the impugned judgment where....
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.... a cheque which is dishonoured is concerned, he is clearly responsible for the incriminating act and will be covered under Sub-section (2) of Section 141." 12. Further, in the case of K.K. Ahuja Vs. V.K.Vora reported in 2009 (10) SCC 48, in para 27, the Hon'ble Apex Court has held as under: "27. The position under Section 141 of the Act can be summarized thus:- (i) If the accused is the Managing Director or a Joint Managing Director, it is not necessary to make an averment in the complaint that he is in charge of, and is responsible to the company, for the conduct of the business of the company. It is sufficient if an averment is made that the accused was the Managing Director or Joint Managing Director at the relevant time. This is because the prefix `Managing' to the word `Director' makes it clear that they were in charge of and are responsible to the company, for the conduct of the business of the company. (ii) In the case of a Director or an officer of the company who signed the cheque on behalf of the company, there is no need to make a specific averment that he was in charge of and was responsible to the company, for the conduct of the business of th....
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....puted cheque was given by the petitioner on behalf of the Company. A demand notice was served only on the petitioner/accused, there was no demand notice against company, therefore, without arraying the company as an accused in complaint case, the petitioner can not be prosecuted for the offence of Section 138 N.I. Act. In this regard in the case of Himanshu Vs. B. Shivamurthy and another reported in (2019) 3 SCC 797, the Hon'ble Supreme Court has clarified the necessary condition to make out offence under Section 138 of NI Act, the relevant paras are quoted as under:- 8. The judgment of the three-Judge Bench has since been followed by a two-Judge Bench of this Court in Charanjit Pal Jindal v. L.N. Metalics [Charanjit Pal Jindal v. L.N. Metalics, (2015) 15 SCC 768 : (2016) 3 SCC (Civ) 447 : (2016) 3 SCC (Cri) 400]. There is merit in the second submission which has been urged on behalf of the appellant as well. The proviso to Section 138 contains the preconditions which must be fulfilled before an offence under the provision is made out. These conditions are: (i) presentation of the cheque to the bank within six months from the date on which it is drawn or within the period of i....
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....ffence under Section 138. Those ingredients are: (1) that a person drew a cheque on an account maintained by him with the banker; (2) that such a cheque when presented to the bank is returned by the bank unpaid; (3) that such a cheque was presented to the bank within a period of six months from the date it was drawn or within the period of its validity whichever is earlier; (4) that the payee demanded in writing from the drawer of the cheque the payment of the amount of money due under the cheque to payee; and (5) such a notice of payment is made within a period of 30 days from the date of the receipt of the information by the payee from the bank regarding the return of the cheque as unpaid." 11. In the present case, the record before the Court indicates that the cheque was drawn by the appellant for Lakshmi Cement and Ceramics Industries Ltd., as its Director. A notice of demand was served only on the appellant. The complaint was lodged only against the appellant without arraigning the company as an accused. 12. The provisions of Section 141 postulate that if the person committing an offence under Section 138 is a company, every person, who at the time when the o....