TaxTMI 
TaxTMI 
2016 (1) TMI 1459
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....or the applicant and learned APP Mr. Soni for respondent no. 1-State of Gujarat. Though served, respondent no. 2 has not filed appearance. Matter is listed for final hearing and pending since 2011. Hence, the same is taken up today. 3. Learned advocate Mr. Dave for the applicant submitted that respondent no. 2 has filed Criminal Case No. 273 of 2010 before the learned Metropolitan Magistrate Court against the applicant and another as partners of J. Parikh and Sons-the partnership firm under Section 138 of the Negotiable Instruments Act for dishonour of two cheques - one for an amount of Rs. 25,000/- and another for an amount of Rs. 20,000/-. Learned advocate has referred to the averments and allegations made in the impugned complaint and m....
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....rough the documents produced on record and the decisions relied upon by learned advocate for the applicant. From the impugned complaint, it is clear that the complainant himself has stated in the complaint that both the accused are partners of J. Parikh and Sons-partnership firm. In paragraph 2 of the complaint, the complainant has further submitted that accused are carrying on business in the name of J. Parikh and sons and accused nos. 1 and 2 are partners of J. Parikh and Sons. The cheques in question were issued by the accused as partners of the partnership firm. From the cheque numbers mentioned in the complaint and from the account statement of M/s. J. Parikh and Sons-partnership firm produced at Annexure 'B' with the compilation, it c....
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....nce 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-sec. (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 attribute to, any neglect on the part of, any director, Manager, secretary, or other office of the company, such director, manager, s....
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....affecting the rights of persons whether juristic entities or individuals, unless they are arrayed as accused. It is to be kept in mind that the power of punishment is vested in the legislature and that is absolute in Section 141 of the Act which clearly speaks of commission of offence by the company. The learned counsel for the respondents have vehemently urged that the use of the term as well as in the Section is of immense significance and, in its tentacle, it brings in the company as well as the director and/or other officers who are responsible for the acts of the company and, therefore, a prosecution against the directors or other officers is tenable even if the company is not arraigned as an accused. The words as well as have to be un....
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....t on the touchstone of vicarious liability as the same has been stipulated in the provision itself. We say so on the basis of the ratio laid down in C.V Parekh, ((1970) 3 SCC 491 : AIR 1971 SC 447) which is a three Judge Bench decision. Thus, the view expressed in Sheoratan Agarwal, ((1984) 4 SCC 352 : AIR 1984 SC 1824) does not correctly lay down the law and, accordingly, is hereby overruled. The decision in Anil Hada, ((2000) 1 SCC 1 : AIR 2000 SC 145 : 1999 AIR SCW 4228) is overruled with the qualifier as stated in paragraph 37 the decision in Modi Distilleries, ((1987) 3 SCC 684 : AIR 1988 SC 1128) has to be treated to be restricted to its own facts as has been explained by us hereinabove." 11. In my view, the case of the applicant in....