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TMI Blog2025 (3) TMI 838X X X X Extracts X X X X X X X X Extracts X X X X ..... PSCL Project and the rate was fixed at Rs. 41/- per square meter and it was agreed that the payment will be made within 30 days after submission of bill. Thereafter, the complainant/appellant completed the said work and he submitted a final bill of Rs. 2,67,444/- on 2nd May, 2014 to the accused/respondent no.1 with a request to make the payment at the earliest. The opposite party no.1 failed to pay the bill amount to the petitioner. However, accused/respondent no.1 accepted the bill amount and assured that the payment will be made. Thereafter the accused/opposite party no.1, after repeated request received part payment in cash for an amount of Rs. 71,444/- in two installments and also received a cheque dated 31.03.2015 to the tune of Rs. 1,96,000/- drawn on SBI Raghunathpur Branch. It is further submitted that the said cheque was signed by the respondent Kishan Bouri as well as one Ganesh Mahato and the petitioner duly deposited the cheque to his banker for encashment, but the said cheque was dishonored on the ground of "insufficient fund". After getting the said information from his banker on 10.04.2014, the complainant sent a demand notice to the respondent for making payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e accused person has failed to rebut the presumption and is therefore liable to be convicted. 4. Being aggrieved by the said judgment of conviction passed by the Trial court, the accused/respondent preferred appeal before the court below and the court below set aside the judgment of conviction mainly on the ground that the accused during his examination in chief stated unequivocally that the work done by the complainant was below quality and was not approved by the engineer of DPSCL and such statement has also been corroborated by DW2 and the complainant was asked to do the work again to satisfy the condition mentioned in exhibit-A (i.e. agreement of work), but the complainant failed to carry out the same and furthermore, court below held that the dispute is civil in nature and the complainant skipped to discharge his liability that the impugned cheque was issued in connection with any legally enforceable debt. 5. Being aggrieved by that judgment passed by the court below the appellant/complainant argued that though the opposite party accused had taken the specific plea that the amount involved in the cheque is not legally enforceable debt since under the terms and conditions me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Decision 7. It appears that the complainant appellant/did not disclose about the existence of exhibit A in his complaint, which is an agreement in respect of his work. However, when the agreement was shown to him during cross examination, he admitted his signature therein and the agreement has been marked as exhibit A. Now on perusal of the said agreement, it appears that the said agreement for the instant work was executed in between the complainant and Kishan Construction, represented by one Tapas Kumar Mondal, who has also deposed in the case as DW2. In fact the agreement marked exhibit A was admittedly signed by the complainant/appellant in one part and said DW2 on behalf of the Kishan construction for other part. It also appears from the impugned cheque that the cheque was signed by the present respondent Kishan Bouri with seal as partner, Kishan Construction and Ganesh Mahato as partner of Kishan Construction. The complainant /appellant as PW1 also admitted that he applied for a work to Kishan Construction and an agreement was reached in between him and the Kishan Construction and the said agreement is marked as exhibit-A. The respondent as DW1 stated during cross examinat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer 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 relation to a firm, means a partner in the firm." 11. In the present case though the respondent has taken a specific plea that the other partner of Kishan Construction namely Ganesh had handed over the cheque to the complainant but in the complaint neither Ganesh has been made an accused nor any specific role has been attributed against the present respondent Kishan Bouri. 12. Accordingly it is apparent that the company who have committed offence under section 138 of N.I. Act, if any, has not been made a party and the respondent/partner only has been made as an accused. In Sarad Kumar Sanghi Vs. Sangita Raney reported in (2015) 12 SCC 781 the supreme Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny, if there is sufficient evidence of his active role coupled with criminal intent. Second situation in which he can be implicated is in those cases where the statutory regime itself attracts the doctrine of vicarious liability, by specifically incorporating such a provision. 44. When the company is the offender, vicarious liability of the Directors cannot be imputed automatically, in the absence of any statutory provision to this effect. One such example is Section 141 of the Negotiable Instruments Act, 1881. In Aneeta Hada [Aneeta Hada v. Godfather Travels & Tours (P) Ltd., (2012) 5 SCC 661 : (2012) 3 SCC (Civ) 350 : (2012) 3 SCC (Cri) 241] , the Court noted that if a group of persons that guide the business of the company have the criminal intent, that would be imputed to the body corporate and it is in this backdrop, Section 141 of the Negotiable Instruments Act has to be understood. Such a position is, therefore, because of statutory intendment making it a deeming fiction. Here also, the principle of "alter ego", was applied only in one direction, namely, where a group of persons that guide the business had criminal intent, that is to be imputed to the body corporate and n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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