TMI Blog2023 (12) TMI 428X X X X Extracts X X X X X X X X Extracts X X X X ..... (5) TMI 83 - SUPREME COURT] , has laid down that in view of our aforesaid analysis, it is concluded 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 drag-net on the touchstone of vicarious liability as the same has been stipulated in the provision itself. In the present case Notice under Section 138 of the Act of 1881 was never issued to the company - The company was not made a party to the proceedings under Section 138/141 of the Act of 1881 which itself makes the proceedings non-maintainable. In the absence of the company being arraigned as an accused, a complaint against the petitioner is not main ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... condition that the said loan amount will be refunded by the petitioner to the opposite party No. 1 along with interest @ 9% per annum and accordingly the petitioner issued two account payee cheques drawn on State Bank of India, Chowringhee Branch dated 20.11.2013 being No. 442590 amounting to Rs. 15,00,000/- as the principal amount and cheque No. 442591 amounting to Rs. 45,000/- as interest. 3. When the said cheque was presented it was dishonoured. Hence the case leading to the conviction of the petitioner to suffer simple Imprisonment for 3 months and to pay a sum of Rs. 17,00,000/- (Rupees seventeen lakhs) only as compensation to the Complainant/Respondent No. 1 herein as per Section 357(3) of Cr.P.C. within 4 months from the date of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther submitted that in the said petition of complaint, Bhavyaa Global Limited was not cited as an accused though the said account payee cheques were issued by the accused/petitioner Ravi Modi being the Director of said Bhavyaa Global Limited. 8. The demand notice dated 21.12.2013 (Exhibit-4) shows that no demand notice was sent to the company M/s. Bhavyaa Global Limited. The said demand notice dated 21.12.2013 was sent only to the accused/petitioner herein Ravi Modi C/o. M/s Bhavyaa Global Limited. 9. Mr. Rahaman has thus prayed for dismissal of the case. 10. There is no representation on behalf of the opposite parties. 11. From the materials on record including the Judgment of the Trial Court it is on record at page 8 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and 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 accordingly: Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence: [Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... now be arraigned as an accused. 17. The Hon ble Apex Court similarly in Aneeta Hada -versus- Godfather Travels And Tours Private Limited, (2012) 5 SCC 661, has laid down that in view of our aforesaid analysis, we arrive at the 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 drag-net on the touchstone of vicarious liability as the same has been stipulated in the provision itself. 18. In the present case Notice under Section 138 of the Act of 1881 was never issued to the company. 19. The company was not made a party to the proceedings under Section 138/141 of the Act of 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant was therefore not maintainable. The appellant had signed the cheque as a Director of the company and for and on its behalf. Moreover, in the absence of a notice of demand being served on the company and without compliance with the proviso to Section 138, the High Court was in error in holding that the company could now be arraigned as an accused. 24. The facts in the present case is very similar to the case, in Himanshu vs. B. Shivamurthy Anr. (Supra). 25. In the present case:- a) The company has not been made an accused nor was any notice served upon the company. b) The petitioner has been made an accused as the Director of the company, who signed and issued the cheque for and on behalf of the company. 26. Therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
