TMI Blog2019 (4) TMI 1628X X X X Extracts X X X X X X X X Extracts X X X X ..... accused No.1/Firm. However, failed to prove that accused Nos.3 and 4 are vicariously liable for the act of accused No.1/Firm because accused Nos.3 and 4 were not the acting partners of the firm. Therefore, it is clear that accused No.2 issued cheques (Exhs.146 and 147) on behalf of accused No.1/Firm towards discharge of legal debt and liability - accused No.2 was held guilty of the offence punishable under Section 138 of the Negotiable Instruments Act. Accused No.2 was managing the affairs of accused No.1/Firm. He himself has signed the cheques (Exhs.146 and 147). The said cheques were not encashed. Criminal revision application allowed. - CRIMINAL REVISION APPLICATION (REVN) NO. 175 OF 2017 WITH CRIMINAL APPEAL (APEAL) NO. 380 OF 2014, WITH CRIMINAL REVISION APPLICATION (REVN) NO. 114 OF 2015, 153 of 2015 - - - Dated:- 26-4-2019 - M.G. GIRATKAR, J. Shri A.C. Dharmadhikari, Advocate for the applicant. Shri H.D. Dubey, Additional Public Prosecutor for respondent No.1. Respondent Nos.2 to 5 are served. JUDGMENT : M.G. GIRATKAR, J. All the matters are arising out of the judgment and order dated 18th August, 2015 passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heque of ₹ 15,00,000/( rupees fifteen lakhs only) dated 31st March, 2008. The complainant presented those cheques to the bank on 24.09.2008 and 25.09.2008 respectively. Both the cheques were dishonored for the reasons Funds Insufficient . 5. The complainant issued notice to the accused through his advocate. Though the notices were received by the accused persons, they did not return amount within stipulated period. Complaint case was filed. Process was issued. Pleas of accused were recorded. After evidence, statement under Section 313 of the Code of Criminal Procedure was recorded by the Judicial Magistrate First Class. Learned JMFC convicted accused No.2Kamalkishor Fulchand Baheti for the offence punishable under Section 138 of the Negotiable Instruments Act and sentenced him to suffer simple imprisonment for the period of one month and to pay a fine of ₹ 5,000/, in default, to further suffer SI for the period of 15 days. 6. Accused No.2 shall pay an amount of ₹ 30,00,000/(rupees thirty lakhs only) within a period of two months from the date of judgment, in default, sentence to suffer simple imprisonment for the period of one month. 7. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on the judgment of Aneeta Hada .v. Godfather Travels and Tours Private Limited (cited supra) and come to the conclusion that accused No.1/Firm is not convicted and, therefore, judgment of JMFC is illegal. It appears that the first appellate Court has wrongly interpreted the judgment of Apex Court in the case of Aneeta Hada .v. Godfather Travels and Tours Private Limited (cited supra). Hon'ble Apex Court has held that, to fix the criminal liability for dishonour of cheque drawn by company, mandatory requirement of impleading company as one of the accused Director or authorised signatory of cheque, prosecution against, without arraigning of company as accused, held, not maintainable. Only exception would be in a case applying principle of lex non cogit ad impossibilia i.e. if for some legal snag, company cannot be proceeded against without obtaining sanction of a court of law or other authority, trial as against the other accused may be proceeded against if ingredients of Section 138 as also Section 141 are otherwise fulfilled. In such an event, clarified that it would not be a case where company had not been made an accused but would be one where company cannot be proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 138 of Negotiable Instruments Act. 13. From the reading of judgment of JMFC, it is clear that accused No.1/Firm not only made party but it is also proved by the complainant that accused No.1/Firm has committed the offence punishable under Section 138 of the Negotiable Instruments Act. Accused No.2 being the Managing Director, who issued the cheque, was held responsible. Therefore, impugned judgment of Additional Sessions Judge, Akola in Criminal Appeal No. 120 of 2013 is liable to be quashed and set aside. 14. The complainant has challenged the acquittal of accused Nos.3 and 4 in Criminal Appeal No. 380 of 2014. Shri A.C. Dharmadhikari, learned Counsel has pointed out the judgment of Apex Court in the case of S.M.S. Pharmaceuticals Ltd..v. Neeta Bhalla and another (reported in 2005(8) SCC, 89). It is observed by the Hon'ble Apex Court as under : There is almost unanimous judicial opinion that necessary averments ought to be contained in a complaint before a person can be subjected to criminal process. A liability under Section 141 of the NI Act is sought to be fastened vicariously on a person connected with a company, the principa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt No.4 submits that remand of the matter against accused No.4 amounts to retrial. He is already acquitted by the JMFC and, therefore, impugned judgment of Additional Sessions Judge is liable to be quashed and set aside. 18. I have already come to the conclusion that the judgment of JMFC is perfectly legal and correct. First appellate Court has wrongly interpreted the judgment in the case of Aneeta Hada .v. Godfather Travels and Tours Private Limited (cited supra). Learned Additional Sessions Judge has recorded his findings that accused No.1/Firm is not convicted and, therefore, judgment of JMFC is illegal. The ratio laid down by the Hon'ble Apex Court in the case of Aneeta Hada .v. Godfather Travels and Tours Private Limited (cited supra) is that the firm/company should be an accused in the case under Section 138 of the Negotiable Instruments Act and the partners/directors are vicariously liable for the act of firm/company. The judgment in the case of Aneeta Hada .v. Godfather Travels and Tours Private Limited (cited supra) nowhere says that the firm should be convicted and sentenced to jail. The complainant has made firm as accused No.1 in the complaint i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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