TMI Blog2022 (1) TMI 752X X X X Extracts X X X X X X X X Extracts X X X X ..... n the criminal proceedings. The deeming provision under Section 141 of the Act applies to the Company and person responsible for the acts of the Company. Section 141 clarifies that the company would mean any body corporate and would include a firm and directors , in relation to firm, would also means a partners in the firm. Section 141 clearly stipulates that the person which is a Company commits offence then certain categories of person as provided therein, as well as the Company would be deemed to be liable for the offences under Section 138 of the N.I. Act. Explanation to Section 141 thus makes deeming fiction applicable in the case of partnership firm too, which gets included in the meaning of the Company for the purpose of Section 141 of the N.I. Act. The effect of the Section 141 is that Company is principal offender under Section 138 of the Act and remaining persons are made offender by virtue of legal fiction created by the legislature as per the Section. Thus actual offence should have been committed by the Company then alone the other categories of persons would become liable for the offences - in the present case though the name of the firm has been reflected in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e unreasonable to prosecute him under the N.I. Act. 2. Ms.Meghna A. Patel, learned advocate for the petitioner further submitted that the sale-deed so executed also discloses that the land in question was purchased by the Partnership Firm. She states that the petitioner does not agitate the fact that he is an authorized Partner of the firm. Ms. Patel submits that any proceedings under Section 138 of the N.I. Act keeping in view the provisions of Section 141 of the Act, mandates that the partnership firm has to be made a party to the proceedings. She further states that cheque was drawn by Ambika Builders - partnership firm and therefore the firm is a necessary party to the proceedings. 3. She relied on the decisions rendered in the case of A nil Vasudev Rajgor vs. State of Gujarat reported in [ 2017 (3) GLH 802] and in the case of Sharma Pramod Narayanprasad vs. State of Gujarat, in Criminal Revision Application No.529 of 2014 dated 11.04.2018. 4. Countering the arguments, learned advocate Mr. P.B. Shah for respondent No.2 by relying on the provisions of Sections 24 and 25 of the Indian Partnership Act, submitted that a notice to the authorized Partner of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ship firm and therefore, it cannot be said that the partnership firm has not been made party to the proceedings. 5. Undisputed facts are that the cheques were issued by the partnership firm, the present petitioner is the signatory to the cheque as an authorized partner and the transaction of purchase of land was for the firm. 6. Section 141 of the N.I. Act provides for the constructive liability on the person responsible for the conduct of the business of the company or partnership firm. Section 141 describes about the offences by the Company. The explanation to Section 141 giving the meaning to Company means any body corporate and includes a firm or other association of individuals, further director , in relation to a firm, means a partner in the firm. The petitioner is before this Court challenging the proceedings against him under Section 138 of the N.I. Act contending that the firm has not been joined in the criminal proceedings. 7. In the case of Aneeta Hada vs M/S Godfather Travels Tours reported in (2012) 5 SCC 661, the Apex Court has held that prosecution without arraigning of company as an accused is not maintainable, the criminal liability on account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... role to play in relation to the incriminating act and further that such a person should know what is attributed to him to make him liable. (3) The Company can have criminal liability fastened on it, and if a group of persons that guide the business of the companies have the criminal intent, that would be imputed to the body corporate. Section 141 of the Act clearly stipulates that when a person which is a company commits an offence, then certain categories of persons in charge as well as the company would be deemed to be liable for the offences under Section 138. Thus, the statutory intendment is absolutely plain. The provision makes the functionaries and the companies to be liable and that is by deeming fiction. A deeming fiction has its own signification. 9. In the case of K.K. Ahuja vs. V.K. Vora Anr. reported in 2009 (10) SCC 48, the Supreme Court has observed as follows: 20. 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 busi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es under Section 138 of the N.I. Act. Explanation to Section 141 thus makes deeming fiction applicable in the case of partnership firm too, which gets included in the meaning of the Company for the purpose of Section 141 of the N.I. Act. The effect of the Section 141 is that Company is principal offender under Section 138 of the Act and remaining persons are made offender by virtue of legal fiction created by the legislature as per the Section. Thus actual offence should have been committed by the Company then alone the other categories of persons would become liable for the offences. The same legal fiction gets extended in the case of the firm, as offence would be primarily attributed to the firm and person thereafter, responsible for, the Firm would become liable for the offence. Thus the deeming provision makes its imperative to join partnership firm as party being principal offender to the criminal proceedings under Section 138 of the N.I. Act read with Section 141 of the Act. Here in the present case though the name of the firm has been reflected in the cause title showing petitioner as partner of the firm, but the firm has not been separately, in individual capacity, made a p ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
