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2022 (6) TMI 1172 - HC - Indian LawsDishonor of Cheque - insufficiency of funds - vicarious liability - It is alleged that the accused knowing it well that there is no sufficient fund in the account still issued the cheques and made himself liable u/s 138 of N.I.Act - HELD THAT:- The Court has gone through the materials on record and finds that in the complaint the firm is not made an accused. On perusal of the cheques which have been brought on the record by way of I.A petition it transpires that the cheque in question was issued by the firm and the petitioner is not a drawer in both the cases. On perusal of this section, it is crystal clear that vicarious liability under sub section 1 or 2 of section 141 of the Negotiable Instruments Act can be fastened if the person is having the control over the day to day affairs of the company. Looking to the explanation of the said section, it is crystal clear that the firm or the company are required to be made an accused in the complaint, which is lacking in the case in hand. However, such vicarious liability arises only when the company or the firm commits offence as primary offence. The judgment relied by Mr. Singh, the learned counsel appearing on behalf of the petitioners in the case of ANEETA HADA VERSUS GODFATHER TRAVELS & TOURS (P.) LTD. [2012 (5) TMI 83 - SUPREME COURT] is on the same footing which is helping the petitioners. Recently, the Hon'ble Supreme Court has again examined this aspect of the matter in the case of Dilip Hariramani v. Bank of Baroda [2022 (5) TMI 424 - SUPREME COURT] - By the Hon'ble Supreme Court in the judgment clearly held that section 141 of the Negotiable Instruments Act extends vicarious criminal liability to the officers associated with company or firm when one of twin requirements of section 141 has been satisfied, which person(s) then, by deeming fiction, is made vicariously liable and punished. In absence of the firm and looking into the admitted position that the petitioner is not the drawer and in both the case he cannot be liable to be punished. Petition allowed.
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