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2018 (9) TMI 929 - HC - Indian LawsDishonour of cheque - Theft or misappropriation of the cheques - concept of vicarious liability - Does the complaint not maintainable for its omission to array the Proprietary concern Sudha Gas Agency as accused? - plea is liable to be rejected outright for the simple reason that Section 141 of N.I. Act contemplates procedure in case of offence committed by company - Held that:- Company is a legal entity by itself. Being a juristic body it can sue or be sued. Though company being a juristic body and can sue and be sued, it cannot operate itself. Some human agency is required. Therefore company being the principal, the human agency who operates the company become its agent. So, the natural person either individual or group of individuals who operates on behalf of the company is vicariously held liable for the act he do for or on behalf of the company. Hence Section 141 of the N.I. Act, say, besides company, whom else to be prosecuted when the company is the offender. Whereas Proprietorship concern is not a juristic body. It cannot sue or be sued - there cannot be any vicarious liability unless there is prosecution against the company. The said dictum does not cover proprietary concern. Does mere denial of facts regarding transaction, sufficient to hold the accused has rebutted the statutory presumption under Section 139 of N.I. Act? - Held that:- When the complainant has proved the agreement Ex.P.2 through attesting witnesses and the claim of alibi not proved by the accused, the lower appellate Court has erroneously held that Ex.P.2 is titled as Agreement, it is not written in stamp papers, the agreement required stamp duty, so Without getting stamp duty penalty, the trial Court has wrongly admitted the same in evidence and marked as exhibit - It is very unfortunate that the lower appellate Court has failed to appreciate the document Ex.P.2 in proper perspective. It is always the content of the document decides the nature of the document, but not the title it carries. Ex.P.2 is recording of the compromise of the panchayat held on 12.07.2002. It is not relied to enforce the content of the document, which disclosed existence of a liability. For collateral purpose to show the cheques in dispute were issued pursuant to the panchayat, it is marked. The accused in this case, has attempted to probabilise there was no passing of consideration to issue cheques and the cheques were stolen by the accused while he was employed as Manager. From the evidence let in by the complainant as pointed out earlier, the complainant has established to the core that he was not mere a Manager in Sudha Gas Agency, he and his family members have contributed to the business and the same has been acknowledged by the accused himself in his letters to HPCL just few months before the trouble started - Mere denial of liability or passing of consideration will not be sufficient to rebut the presumption under section 139 of the N.I. Act. Such a rebuttal should be backed by some material evidence which could probabilise the facts content in it. The points framed for consideration answered accordingly. The Trial Court is directed to secure the respondent/accused and commit him to prison to undergo the period of sentence - appeal allowed.
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