TMI Blog2015 (2) TMI 1254X X X X Extracts X X X X X X X X Extracts X X X X ..... Petition No. 4419 of 2014 - - - Dated:- 24-2-2015 - M. L. Tahaliyani, J. For the Petitioner : Abad Ponda a/w. D. M. Thakur i/by Dave Co. For the Respondent : Viral Shukla i/by Shukla and Associates, Rajesh More, APP for the State. ORDER 1. Heard the learned counsel for the parties finally. 2. The issue raised in the present petition is as to whether a director or an employee of the company can be prosecuted for the offence punishable under section 138 of the Negotiable Instruments Act with the help of section 141 of the said Act when the offence is allegedly committed by the company, without impleading the company as an accused. 3. Before I proceed further it may be noted here that the same issue was raised befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AIR SCW 4428) is overruled with the qualifier as stated in paragraph 37. The decision in Modi Distilleries (AIR 1988 SC 1128) has to be treated to be restricted to its own facts as has been explained by us hereinabove. 5. Learned counsel Mr. Viral Shukla appearing on behalf of Respondent No.1 has submitted that the judgment cited by learned counsel Mr. Ponda is prospective and it will not have a retrospective effect. It was submitted that the complaint filed by respondent no.1 Bharat Sanchar Nigam Ltd. is of the year 2004 and that the complaint will have to be decided on the basis of the law laid down by the Supreme Court in the matter of Anil Hada vs. Indian Acrylic Ltd., reported in [(2000) 1 SCC 1 : AIR 200 SC 145]. Reliance was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitution but subsequent decisions have made the same applicable even to cases under different statutes. The Court observed: 15. The doctrine of prospective overruling was initially made applicable to the matters arising under the Constitution but we understand the same has since been made applicable to the matters arising under the statutes as well. Under the doctrine of prospective overruling the law declared by the Court applies to the cases arising in future only and its applicability to the cases which have attained finality is saved because the repeal would otherwise work hardship to those who had trusted to its existence. Invocation of doctrine of prospective overruling is left to the discretion of the court to mou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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