TMI Blog2018 (4) TMI 1911X X X X Extracts X X X X X X X X Extracts X X X X ..... istration of the partnership firm, section 141 shall have to be complied with in its later spirit - the petitioners are ordered to be acquitted - petition allowed. - R/Criminal Revision Application Nos. 529 of 2014 and 530 of 2014 - - - Dated:- 11-4-2018 - G.R. Udhwani, J. For the Appellant : Y.N. Ravani, Vivek V. Bhamare and V.N. Bhamare, Advocates. For the Respondents : P.P. Majmudar, Advocate and K.L. Pandya, Additional Public Prosecutor. JUDGMENT G.R. Udhwani, J. 1. Judgment and order dated 30.08.2014 passed by the learned 3rd Additional Sessions Judge, Anand in Criminal Appeal No. 35 of 2014 and Criminal Appeal No. 36 of 2014 after affirming the judgement and order dated 12.03.2014 passed by the learned 8th Additional Chief Judicial Magistrate, Anand recording conviction for the appellants for the offence punishable under section 138 of the Negotiable Instruments Act, 1881 (for short 'N.I. Act') is assailed in the revisional jurisdiction of this court. 2. It is unnecessary for this court to refer to the factual matrix of the case in detail in light of the question of law raised in this Criminal Revision Application; suffice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lation to a firm, means a partner in the firm.] 5. The provision received consideration from the Apex Court in detailed judgement in Aneeta Hada v. Godfather Travels and Tours Private Limited and other 2012 (2) R.C.R. (Criminal) 854 : 2012(5) SCC 661. After considering the case law cited before it, the relevant considerations are found in paras 58 and 59 of the pronouncement which read thus: 58. Applying the doctrine of strict construction, we are of the considered opinion that commission of offence by the company is an express condition precedent to attract the vicarious liability of others. Thus, the words as well as the company appearing in the Section make it absolutely unmistakably clear that when the company can be prosecuted, then only the persons mentioned in the other categories could be vicariously liable for the offence subject to the averments in the petition and proof thereof. One cannot be oblivious of the fact that the company is a juristic person and it has its own respectability. If a finding is recorded against it, it would create a concavity in its reputation. There can be situations when the corporate reputation is affected when a director is indict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n detail in Oanali Ismailji Sadikot v. State of Gujarat and Anr. 2016 (3) GLR 1991. It was held thus in paras 30, 31, 32, 33 and 34: 30 Thus, it has been laid down in unequivocal words in the aforesaid decision that for maintaining the prosecution against the director under section 141 of the Negotiable Instruments Act, arraigning of a company as an accused is imperative. In view of explanation to section 141 of the Negotiable Instruments Act referred to above, this legal position needs to be automatically made applicable in case of prosecution against a partnership firm also. Therefore, it has to be held that for maintaining prosecution against a partner under section 141 of the Negotiable Instruments Act, arraigning of partnership firm as an accused is imperative. 31 The conclusions drawn by the Supreme Court in the case of Aneeta Hada (supra) are not based merely on the fact that the company is a separate legal entity and juristic person, but these conclusions are drawn on the basis of the fact that section 141 of the Negotiable Instruments Act deals with the vicarious liability. In paras 58 and 59 of the said judgment, referred above, the Supreme Court has referred t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 141 of the Negotiable Instruments Act and explanation thereto does not make any distinction between the company and the partnership firm, there is absolutely no reason to draw 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 an essential party and that arraigning of a company as an accused is imperative for prosecution under section 141 of the Negotiable Instruments Act, it necessarily follows that arraigning of a partnership firm is also imperative for prosecution against the partners under section 141 of the Negotiable Instruments Act. The prosecution launched against only one of the partners of the partnership firm, without joining the partnership firm, cannot be maintainable. 8. Learned counsel for the respondents would contend that the partnership firm is not legal entity and vicarious liability is foreign t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legislative intent is again demonstrated in clause (b) of the above explanation when it defines directors in relation to a firm, to mean a partner in the firm. The conscious departure from the provisions of Partnership Act is thus made loud and clear and when intention is loud and clear, the provisions of Partnership Act are irrelevant for interpreting the expression company in explanation (a) to section 141 of the N.I. Act. The expression company used in explanation (a) to Section 141 is not to be understood in the limited sense of it being only a juristic person but would include even non juristic persons as intended by the legislature. 10. It is also submitted by the learned counsel for the respondent that since the partnership firm was not a registered firm and in absence of mandate to get the firm registered, its non arraigning as co-accused would not be fatal. For the foregoing reasons, again it is not permissible to go beyond the language used in section 141 and therefore even in absence of registration of the partnership firm, section 141 shall have to be complied with in its later spirit. 11. The learned counsel also invited attention of this court to the ti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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