TMI Blog2020 (8) TMI 215X X X X Extracts X X X X X X X X Extracts X X X X ..... contention in his favour before this Court. It is an admitted case that, the 1st accused in this case is M/s. Sea Wings Shipping Others, Willingdon Island represented by its Managing Partner Mr. Varghese Philip. Mr. Varghese Philip is the 2nd accused - Since 1st accused is a firm, only fine was imposed. The conviction and sentence imposed on the 1st accused is not challenged by the 1st accused. 1St accused is represented by the 2nd accused. The conviction and sentence imposed on the 1St accused became final. In such circumstances, the 2nd accused, who is actually representing the 1st accused cannot contend in an appeal against acquittal of the 2nd accused to the effect that, the execution of the cheque is not proved, especially when the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheque drawn on M/s.Federal Bank Ltd. dated 26.06.1999 for ₹ 1,96,000/- in favour of the complainant for discharging the liability incurred in the business. The cheque was presented for encashment, it was dishonored with an endorsement 'fund insufficient'. When a statutory notice was issued, the accused refused to pay the amount. Hence, the complaint was filed. 3. To substantiate the case, one witness was examined on side of the prosecution. Exts. P1 to P6 are the exhibits. On going through the evidence and documents, the trial Court found that, the 1st accused is guilty of the offence under Section 138 of the Negotiable Instruments Act. Since, the 1st accused is a firm, an amount of ₹ 5,000/- was imposed as fine. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that, the Division Bench of this Court observed in para 12 of the decision that,the complaint should contain the necessary facts constituting the offence as against the person arranged as the accused. If there is no such averments, according to the counsel, the prosecution is not possible against a partner, even if he is the Managing Partner of the firm. The counsel also submitted that, no notice is issued to the firm in this case. He also submitted that the execution of the cheque is not proved in this case. 6. After hearing both sides, I am not in a position to agree with the contentions of the 2nd accused in this case, who is acquitted by the trial Court. S.M.S.Pharmaceuticals Ltd. (Supra) is the three Bench decision of the Supreme C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. This averment is an essential requirement of S.141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements of S.141 cannot be said to be satisfied. (b) The answer to question posed in sub para (b) has to be in negative. Merely being a director of a company is not sufficient to make the person liable under S.141 of the Act. A director in a company cannot be deemed to be in charge of and responsible to the company for conduct of its business. The requirement of S.141 is that the person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f business of the company. Therefore, the larger Bench of the Supreme Court held that, they get covered under section 141 of the Negotiable Instruments Act. It is also mentioned in the decision that, signatory of a cheque which is dishonoured is concerned, he is clearly responsible for the incriminating Act and will be covered under sub section (2) of Section 141. Admittedly, in this case 2nd accused is the Managing Director of the firm. It is also the admitted fact that, he is the signatory in the cheque. He signed the cheque on behalf of the firm. In such circumstances, simply because there is no averments in the complaint to the effect that, the Managing Partner is in charge and responsible he cannot escape from responsibility. Therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n and sentence imposed on the 1st accused is not challenged by the 1st accused. 1St accused is represented by the 2nd accused. The conviction and sentence imposed on the 1St accused became final. In such circumstances, the 2nd accused, who is actually representing the 1st accused cannot contend in an appeal against acquittal of the 2nd accused to the effect that, the execution of the cheque is not proved, especially when the conviction and sentence against the 1st accused under section 138 of the Negotiable Instruments Act became final. 10. Hence, I think, the 2nd accused also committed an offence under section 138 of the Negotiable Instruments Act. The trial Court imposed a fine of ₹ 5,000/- to the 1st accused because 1st accused ..... X X X X Extracts X X X X X X X X Extracts X X X X
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