TMI Blog2015 (8) TMI 907X X X X Extracts X X X X X X X X Extracts X X X X ..... he judgment in P.J. Agro Tech Limited and Ors. Vs. Water Base Limited, [2010 (7) TMI 280 - SUPREME COURT OF INDIA] where this Court has dealt with the scope of Section 138 and held that it is very clear that in order to attract the provisions thereof a cheque which is dishonoured will have to be drawn by a person on an account maintained by him with the banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part of any debt or other liability. It is only such a cheque which is dishonoured which would attract the provisions of Section 138 of the above Act against the drawer of the cheque. In the light of the position which the respondent in the present case held, we are of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. through the accused-respondent by paying him ₹ 74,200/-. In acknowledgment of the said amount, the accused respondent issued two receipts to the appellant, for a sum of ₹ 59,000/- and ₹ 14,200/-, respectively. By the year 2003, as alleged by the appellant, the aforesaid project of the respondent did not materialize. After much persuasion, the accused respondent drew cheque No.075073 for ₹ 74,200/- in favour of the appellant, of an account maintained by him with his banker towards refund of the aforesaid booking amount. The cheque was drawn by the respondent in his individual capacity and not in the capacity as a Director of M/s. Salvi Infrastructure Pvt. Ltd. or as Proprietor of Salvi Builders and Developers. When ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order dismissed the said application on the ground that the reasoning set out by the Trial Court in its order did not call for reconsideration. 5. The appellant is thus before us. Learned counsel for the appellant has raised the following grounds in this appeal. Learned counsel submits that the Courts below have failed to appreciate that under Section 138 of the NI Act, it is the drawer of the cheque who is made punishable for offence under Section 138 of the NI Act. Further, the Courts below have failed to appreciate that in the present matter the cheque in question was drawn by the respondent and not by the Company of which the respondent is the Managing Director. The cheque was drawn by him in his personal capacity on an account main ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was the person incharge of, and responsible for the affairs of the Company. In that case the accused was mentioned as the said person incharge. In the present case, the accused Vijay Salvi was made accused in his personal capacity. 7. We have heard the learned counsel appearing for the parties and have perused the order passed by the Metropolitan Magistrate, 33rd Court, Ballard Pier, Mumbai. 8. In our opinion, the issue involved in the present case is whether the respondent can be made liable in his personal capacity when the Company has not been made a party to the complaint. 9. From a bare reading of Section 138 of the NI Act, the following essentials have to be met for attracting a liability under the Section. The first and fore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above Act against the drawer of the cheque. 11. About the liability under Section 138 of the NI Act, where the cheque drawn by the employee of the appellant company on his personal account, even if it be for discharging dues of the appellant-company and its Directors, the appellant-company and its Directors cannot be made liable under Section 138. Thus, we observe that in the abovementioned case, the personal liability was upheld and the Company and its Directors were absolved of the liability. The logic applied was that the Section itself makes the drawer liable and no other person. This Court in P.J. Agro Tech Limited (supra) noted as under: An action in respect of a criminal or a quasi-criminal provision has to be strictly constr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent was incharge of the affairs of the company, by virtue of the position he held. Thus, we hold that the respondent Vijay D Salvi is liable for the offence under Section 138 of the NI Act. 14. The law laid down by this Court in R. Vijayan Vs. Baby and Anr., (2012) 1 SCC 260 was to the following effect: As the provisions of Chapter XVII of the Act strongly lean towards grant of reimbursement of the loss by way of compensation, the courts should, unless there are special circumstances, in all cases of conviction, uniformly exercise the power to levy fine up to twice the cheque amount (keeping in view the cheque amount and the simple interest thereon at 9% per annum as the reasonable quantum of loss) and direct payment of such a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
