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2019 (10) TMI 361

..... ng director - liability against the company - HELD THAT:- In the present case, the applicant tried to place reliance on the ratio laid down by the Delhi High Court in the case of DSC Ltd. (supra) however, in that case the company was arraigned as party Respondent and Managing Director was not made separate party. In the fact of that case the Delhi High Court held that, on said technical defect complaint cannot be quashed. It is true that in the present case the subject cheque is signed by the applicant, however in the capacity of a Managing Director of the NHA Investment Consultancy Pvt. Ltd. Therefore, it is imperative on the part of the complainant to implead the Company as party Respondent. T Once the company is held to be essential party, and that arraigning of a company as an accused is imperative for prosecution under Section 141 of the NI Act. Unless the company is arraigned as an accused the order of issuance of process against the applicant cannot legally sustain in view of the requirement of Section 138 of the NI Act. Considering that by allowing the present application, this Court is quashing the process issued against the present applicant for not joining the company, t .....

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..... April 2018. Applicant has received the summons on about 28th March 2018 thereby directing him to appear before the learned Metropolitan Magistrate, 33rd Court, Ballard Pier to answer a charge under Section 138 r.w. Section 141 of the said Act. It is pertinent to mention here that, the applicant did not receive the copy of the complaint along with the summons as stipulated under law. 5. It is the case of the applicant that, pursuant to the receipt of the summons, the applicant appeared before the learned Magistrate on 6th April 2018 through his advocate. That, on the said date scheduled for appearance the applicant preferred two applications through his advocate. The applicant preferred the first application for seeking exemption of the applicant under Section 205 of the Cr.P.C and the second application was for seeking an adjournment wherein the applicant specifically averred that the copy of the complaint was not accompanied along with the summons received by him and hence the summons has not been served as prescribed by law. It is the case of the applicant that, the learned Metropolitan Magistrate was pleased to allow the exemption application and the second application seeking a .....

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..... ny is necessary party to the complaint. A plain reading of the complaint and a perusal of the said cheques clearly did not disclose the commission of offence under Section 138 of the N.I. Act by the accused. In absence of company being made party to the criminal complaint, the prosecution against the applicant would fail on this ground itself as Section 138 of N.I. Act fastens the primary responsibility upon the drawer of the cheque and unless and until the drawer of the cheque is arraigned as accused being the principal accused before the Court, the others cannot be tried and prosecuted by the Court under Section 138 of the N.I. Act. In support of aforesaid contention learned counsel placed reliance upon a ratio laid down in the case of Aneeta Hada Versus Godfather Travels and Trous (Pvt.) Ltd (2012) 5 SCC 661. It is submitted that, the aforesaid ruling was also followed by the Bombay High Court (Coram : Dr. Shalini Phansalkar-Joshi,J.) in the case of Philip J. V/s. Ashapura Minechem Ltd and Ors. Criminal Writ Petition No. 2909 of 2013 decided on 29th January 2016. 9. It is submitted that, the order of issuance of process which is passed by the learned Metropolitan Magistrate is o .....

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..... . 14611/2014 decided on 16th November, 2018. Learned counsel invites attention of this Court to the averments in the complaint and submits that, application may be rejected. 12. Heard learned counsel appearing for the Applicant and learned counsel appearing for first Respondent at length. With their able assistance perused the pleading in the application, grounds taken therein and annexures thereto, so also the averments mad in the complaint. The issue raised in the present application is no more res integra. This Court (Coram : Dr. Shalini Phansalkar-Joshi,J.) in the case of Philip J. V/s. Ashapura Minechem Ltd and Ors (Supra) has taken a view that the prosecution launched against only one of the partners of the partnership firm, without joining the partnership firm, cannot be maintainable and on this very ground, the process issued against the applicant is liable to be quashed and set aside. In the said judgment this Court (Coram : Dr. Shalini Phansalkar-Joshi,J.) has relied upon the exposition of law in the case of Aneeta Hada (Supra). Paragraph nos. 13 to 17 of the said judgment reads as under:- 13. However, in my considered opinion, the conclusions drawn by the Apex Court in t .....

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..... e to partnership firm and the company. 16. Moreover, the Legislature has already made it clear that the company includes any body corporate which includes firm or other association of individuals and director in relation to a firm means a partner in the firm. On this count also, when section 141 of the NI Act and explanation thereto does not make any distinction between the company and the partnership firm, there is absolutely no reason to make such distinction while making applicable the law laid down by the Apex Court in Aneeta Hada (supra) to the partnership firm merely because in that judgment the Apex Court was considering the eventuality of non-joining of the company. The basic premise of holding either the director or the partner liable for prosecution being the same that of the vicarious liability. Therefore, once the company is held to be essential party and that arraigning of a company as an accused is imperative for prosecution under section 141 of the NI Act, it necessarily follows that arraigning of a partnership firm is also imperative for prosecution against the partners under section 141 of the NI Act. The prosecution launched against only one of the partners of the .....

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