TMI Blog2014 (10) TMI 1050X X X X Extracts X X X X X X X X Extracts X X X X ..... ugned complaints. All the aforesaid impugned complaints in the present three cases are not maintainable. Hence, this Court can exercise the powers under Section 482 of the Cr.P.C. for quashing and setting aside the impugned complaints. Application allowed. - Criminal Misc. Application (for Quashing and Set Aside Fir/Order) No. 10379 of 2009 and Criminal Misc. Application Nos. 10381 and 10382 of 2009 - - - Dated:- 10-10-2014 - V.M. Pancholi, J. For Appellant: Premal S. Rachh, Adv. For Respondents: Chetna M. Shah, A.P.P. JUDGMENT V.M. Pancholi, J. 1. In all the aforesaid three applications filed by the applicant, the common proposition of law that has emerged for consideration of this Court is 'whether an administrator/partner of a partnership firm would be liable for prosecution under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'N.I. Act', for the sake of brevity and convenience) without partnership firm being arraigned as an accused?'. The brief facts leading to the filing of the present applications are as under: 1.1 The present applicant in all the three applications is a partner/admini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and setting aside the criminal complaints filed by the respondent No. 2 before the learned Judicial Magistrate First Class, Sayla. 2. Heard learned advocate Mr. Premal S. Rachh for the applicant, Mr. Ashish M. Dagli, learned advocate for respondent No. 2, and Ms. Chetna M. Shah, learned Additional Public Prosecutor for respondent No. 1 -State of Gujarat. 3. Learned advocate Mr. Premal S. Rachh appearing for the applicant has mainly submitted that the original complainant had issued the notice only to the partners of the firm, and no notice was issued to the partnership firm, namely M/s. Maruti Projects. It is further submitted by the learned advocate for the applicant that the complainant has filed the complaints against the partners of the aforesaid partnership firm without joining the partnership as an accused. In short, the partnership firm is not shown as accused in the impugned complaints. The learned advocate for the applicant further relied upon Section 138 of the N.I. Act read with Section 141. 4. It is further submitted by learned advocate for the applicant that for the purpose of this Section, namely, Section 141, 'company' means any body corporate and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 482 of the Cr.P.C. 7. To appreciate the submissions of the learned advocates for the parties, relevant Sections of the N.I. Act are required to be referred, which deal with the ingredients of the office for dishonour of the cheque and consequent non-payment of the amount due thereon. Section 138 of N.I. Act reads as under: 138. Dishonour of cheque for insufficiency, etc., of funds in the account.-Where any cheque drawn by a person on an account maintained by him with a 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, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may extend to two year , or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cretary, or other office of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.--For the purposes of this section, - (a) company means any body corporate and includes a firm or other association of individuals; and (b) Director , in relating to a firm, means a partner in the firm. The aforesaid explanation to Section 141 of the N.I. Act is thus explicitly clear while defining 'company' and 'director'. 8. The learned advocate for the applicant has rightly relied upon the decision of the Apex Court in the case of Aneeta Hada, [2012 ALL SCR 1424] (supra). The Honourable Apex Court observed in paragraphs Nos. 39, 42 and 43 as under: 39. It is to be borne in mind that Section 141 of the Act is concerned with the offences by the company. It makes the other persons vicariously liable for commission of an offence on the part of the company. As has been stated by us earlier, the vicarious liability gets attracted when the condition precedent laid down in Section 141 of the Act stands satisfied. There can be no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the dragnet on the touchstone of vicarious liability as the same has been stipulated in the provision itself. We say so on the basis of the ratio laid down in C.V. Parekh (AIR 1971 SC 447) (supra) which is a three-Judge Bench decision. Thus, the view expressed in Sheoratan Agarwal, (AIR 1984 SC 1824) (supra) does not correctly lay down the law and, accordingly, is hereby overruled. The decision in Anil Hada, (AIR 2000 SC 145 :1999 AIR SCW 4228) (supra) is overruled with the qualifier as stated in paragraph 37 the decision in Modi Distilleries, (AIR 1988 SC 1128) (supra) has to be treated to be restricted to its own facts as has been explained by us hereinabove. In my view, the case of the applicant in all the three applications is squarely covered by the ratio laid down by the Honourable Apex Court in the case of Aneeta Hada, [2012 ALL SCR 1424] (supra). In the present case, the original complainant has not joined the partnership firm as an accused, and the complaint is filed only ..... X X X X Extracts X X X X X X X X Extracts X X X X
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