TaxTMI 
TaxTMI 
2022 (5) TMI 900
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....f which the proceedings were initiated by petitioner against the respondent, since the cheque was dishonoured with the remarks "Insufficient Funds" when presented. Summoning order was passed by the learned Metropolitan Magistrate vide order dated 11th July, 2016. Aggrieved by the summoning order, the respondent approached the learned ASJ invoking its revisional jurisdiction impugning the order. Vide order dated 13th September, 2019, the learned ASJ allowed the revision petition and set aside the order of summoning as well as the application under Section 216 of the Cr.P.C. filed by the petitioner against the respondent for addition if charge under Section 420/468/471/120B of the Indian Penal Code, 1860. The petitioner is assailing the said Order of the learned ASJ dated 13th September, 2017. 3. Learned counsel appearing on behalf of the petitioner submitted that the learned ASJ has committed an error by presuming the cheque in question was issued on of the accused no.2/Company, namely, Shree Krishna Vanaspati Pvt. Ltd., while deciding the revision petition. The respondent avoided the trial initiated against him and the accused company and instead approached the revisional court ....
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....in the proceedings under Section 138 of the NI Act. It is submitted that the Company was a necessary party to the statutory notice as well as the proceedings initiated under Section 138 of the NI Act, however, the said notice was not issued to the accused Company in accordance with law. It is submitted that in light of the above facts the complaint filed by the petitioner was not maintainable against the accused Company on the ground that the legal notice was not issued to it and also it was not maintainable against the respondent since he only signed the cheque in question on behalf of the accused Company. Learned counsel for the respondent relied upon Aneeta Hada vs. Godfather Travels & Tours (P) Ltd. (2008) 13 SCC 703, Vijay Power Generators Ltd. vs. Sumit Seth, 2014 SCC OnLine Del 2957, Kirshna Texport & Capital Markets Ltd. v. Ila A. Agrawal, (2015) 8 SCC 28, amongst others to give force to his arguments. 9. In rejoinder, it is submitted by the learned counsel for the petitioner that the judgment of Aneeta Hada (Supra), which the respondent has relied upon, is not applicable since, in the judgment Aneeta Hada was an office bearer in the company and not its director, the che....
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....of the Act raises a legal fiction. Such a legal fiction can be raised only when the conditions therefor are fulfilled; one of it being that company is also prosecuted. 21. Interpretation of Section 141 of the Act came up for consideration before a three-Judge Bench of this Court in S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla [(2005) 8 SCC 89 : 2005 SCC (Cri) 1975] wherein it was opined that criminal liability on account of dishonour of cheque primarily falls on the drawer company and is extended to the officers of the company. Analysing Section 141 of the Act, the Bench observed : (SCC p. 96, para 4) "4. ... Section 141 of the Act is an instance of specific provision which in case an offence under Section 138 is committed by a company, extends criminal liability for dishonour of a cheque to officers of the company. Section 141 contains conditions which have to be satisfied before the liability can be extended to officers of a company. Since the provision creates criminal liability, the conditions have to be strictly complied with. The conditions are intended to ensure that a person who is sought to be made vicariously liable for an offence of which the principal a....
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....nd itself. It is against all principles of fairness and justice. It is opposed to the rule of law. No statute in view of our constitutional scheme can be construed in such a manner so as to refuse an opportunity of being heard to a person. It would not only offend common sense, it may be held to be unconstitutional. Such a construction, therefore, in my opinion should be avoided. 50. It is one thing to say that the complaint petition proceeded against the accused persons on the premise that the company had not committed the offence but the accused did, but it is another thing to say that although the company was the principal offender, it need not be made an accused at all. 53. Indisputably, all the decisions of this Court in no uncertain terms says - company at the first instance should be proved to be offender and, thus, only question of proof that the Director is also liable being in charge of its affairs. 54. True interpretation, in my opinion, of the said provision would be that a company has to be made an accused but applying the principle of lex non cogit ad impossibilia i.e. if for some legal snag, the company cannot be proceeded against without o....
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.... by the Hon'ble Supreme Court:- "22. The High Court failed to appreciate that the liability of the appellant (if any in the context of the facts of the present case) is only statutory because of his legal status as the Director of Dakshin. Every person signing a cheque on behalf of a company on whose account a cheque is drawn does not become the drawer of the cheque. Such a signatory is only a person duly authorised to sign the cheque on behalf of the company/drawer of the cheque. If Dakshin/drawer of the cheque is sought to be summoned for being tried for an offence under Section 138 of the Act beyond the period of limitation prescribed under the Act, the appellant cannot be told in view of the law declared by this Court in Aneeta Hada [Aneeta Hada v. Godfather Travels & Tours (P) Ltd., (2012) 5 SCC 661 : (2012) 3 SCC (Civ) 350 : (2012) 3 SCC (Cri) 241] that he can make no grievance of that fact on the ground that Dakshin did not make any grievance of such summoning. It is always open to Dakshin to raise the defence that the initiation of prosecution against it is barred by limitation. Dakshin need not necessarily challenge the summoning order. It can raise such a defence....
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....gredient. The only other ingredient which is required to be proved to establish the commission of an offence under Section 138 is that in spite of the demand notice referred to above, the drawer of the cheque failed to make the payment within a period of 15 days from the date of the receipt of the demand. A fact which the complainant can only assert but not prove, the burden would essentially be on the drawer of the cheque to prove that he had in fact made the payment pursuant to the demand. 27. By the nature of the offence under Section 138 of the Act, the first ingredient constituting the offence is the fact that a person drew a cheque. The identity of the drawer of the cheque is necessarily required to be known to the complainant (payee) and needs investigation and would not normally be in dispute unless the person who is alleged to have drawn a cheque disputes that very fact. The other facts required to be proved for securing the punishment of the person who drew a cheque that eventually got dishonoured is that the payee of the cheque did in fact comply with each one of the steps contemplated under Section 138 of the Act before initiating prosecution. Because it is alr....