TMI Blog2020 (8) TMI 899X X X X Extracts X X X X X X X X Extracts X X X X ..... he partnership firm purchased materials and issued cheque towards part payment of the balance amount. Therefore, the complaint impugned is not at all maintainable as against the partner without impleading the partnership firm as an accused. In the case on hand, admittedly the alleged cheque was issued by the partnership firm and the respondent did not issue any statutory notice to the partnership firm and also did not implead the partnership firm as an accused. There are two partners in the firm, in which the petitioner is being one of the partners only impleaded as an accused. Petition allowed. - Crl.O.P.No.1065 of 2020 and Crl.MP.Nos.645 & 646 of 2020 - - - Dated:- 26-8-2020 - THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d another reported in (2019) 3 SCC 797 and (iii) Rangabashyam Vs. Ramesh reported in 2019 (6) CTC 392 3. Heard, Mr.Adithya Varadarajan, learned counsel for the petitioner. Though notice was served on the respondent and printed the name in the cause list, no one appeared on behalf of the respondent in person or through pleader. 4. The petitioner is the accused on the complaint lodged by the respondent herein for the offences punishable under Section 138 of NI Act. The crux of the complaint is that the respondent is a company engaged in manufacturing and supplying cranes. The accused is a partnership firm that is engaged in the business of manufacture of forklift, ace forklift and forklift truck and their partnership firm had purchas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgment in the case Aneeta Hada Vs. Godfather Travels and Tours Private Limited reported in (2012) 5 SCC 661, wherein the Hon'ble Supreme Court of India has held as follows: 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 compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... well. The proviso to Section 138 contains the pre-conditions which must be fulfilled before an offence under the provision is made out. These conditions are; (i) presentation of the cheque to the bank within six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (ii) a demand being made in writing by the payee or holder in due course by the issuance of a notice in writing to the drawer of the cheque within thirty days of the receipt of information from the bank of the return of the cheques; and (iii) the failure of the drawer to make payment of the amount of money to the payee or the holder in due course within fifteen days of the receipt of the notice. 9. In MSR Leathers v. S. Palaniapp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n charge of or was responsible to the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished. 10. The importance of fulfilling these conditions has been adverted to in a recent judgment of a two Judge Bench of this Court in N. Harihara Krishnan v. J. Thomas. Adverting to the ingredients of Section 138, the Court observed as follows: 26. ....Obviously such complaints must contain the factual allegations constituting each of the ingredTients of the offence Under Section 138. Those ingredients are: (1) that a person drew a cheque on an account maintained by him with the banker; (2) that such a cheque when presented ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... side the judgment of the High Court. In consequence, the complaint, being C.R.P. No. 27/2004 shall stand quashed. In the above judgments, the Hon'ble Supreme Court of India has settled the law to the effect that complaint under Section 138 of NI Act cannot be maintained without issuing statutory notice to the company and without adding the company as accused, only as against the Director of the company. 7. In the case on hand, admittedly the alleged cheque was issued by the partnership firm and the respondent did not issue any statutory notice to the partnership firm and also did not implead the partnership firm as an accused. There are two partners in the firm, in which the petitioner is being one of the partners only impleaded a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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