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2017 (5) TMI 21 - HC - Indian LawsPartner liability - Proceedings of the Criminal Case arising from a complaint filed under section 138 of the N.I. Act. - Liability of authorized signatory of a company to be prosecuted under Section 138 of the Negotiable Instruments Act - Held that:- It appears from the materials on record that the cheque, which came to be dishonoured, was issued by the applicant herein in his capacity as one of the partners of the partnership firm running in the name of Shhlok Enterprise. Indisputably, the partnership firm has not been arraigned as an accused in the complaint. In such circumstances, the applicant cannot be held vicariously liable under section 141 of the N.I. Act. The issue is squarely covered by the decision of the Supreme Court in the case of Aneeta Hada vs. Godfather Travels & Tours Pvt. Ltd., (2012 (5) TMI 83 - SUPREME COURT OF INDIA). Section 141 of the Act is concerned with the offence by the company. It makes the other persons vicariously liable for the commission of an offence on the part of the company. Vicariously liability gets attracted when the condition precedent under section 141, namely, offence by the company stands satisfied. The issue whether a partnership firm is a legal entity within the meaning of section 141 of the N.I. Act is also no longer res integra after the pronouncement in the case of Oanali Ismailji Sadikot vs. State of Gujarat & Anr., [2016 (3) TMI 290 - GUJARAT HIGH COURT ] held that once the company is held to be an essential party and that arraigning of a company as an accused is imperative for prosecution under Section 141 of the Negotiable Instruments Act, it necessarily follows that arraigning of a partnership firm is also imperative for prosecution against the partners under Section 141 of the Negotiable Instruments Act. The prosecution launched against only one of the partners of the partnership firm, without joining the partnership firm, cannot be maintainable. Thus this application succeeds and is hereby allowed. The further proceedings of the Criminal Case pending in the court of the learned 4th Addl. Senior Civil Judge & Addl. Chief Judicial Magistrate, Surat are hereby quashed.
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