Nagarkoti vs Kedar Datt Purohit"
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                                   RESERVED JUDGMENT
      IN THE HIGH COURT OF UTTARAKHAND
                       AT NAINITAL

      THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA

           CRIMINAL APPEAL NO.426 OF 2018


Between:

Ramesh Nagarkoti S/o Shri Kishan Singh

                                                   ....Appellant

and

Kedar Datt Purohit S/o Shri Gopal Datt Purohit

                                                  ......Respondent



Counsel for the appellant          : Mr. Sanjay Kumar.



Counsel for the respondent         : Mr. Yogesh Kumar Pacholia.


                                   Reserved on :19.02.2020
                                   Delivered on :03.03.2021


Hon'ble Alok Kumar Verma, J.

This appeal, by special leave, is preferred by the appellant-complainant against the judgment and order dated 30.11.2018, passed by the learned Chief Judicial Magistrate, Almora in Complaint Case No.01 of 2018, "Ramesh Nagarkoti vs. Kedar Datt Purohit", whereby the learned trial court acquitted the respondent-accused from the offence

punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short "the Act, 1881").

2. As per the averments made in the complaint, the complainant and the accused were businessmen and the complainant had good relations with the accused, who was the proprietor of "Purohit Agency." The accused made a request to the complainant that he was in need of money for his business work and for purchasing a house. He assured the complainant to return the amount as early as possible. Due to the relationship, the complainant deposited time to time Rs.19,45,000.00/- through NEFT/RTGS in the account of the accused's proprietorship firm "Purohit Agency" and Rs.55,000.00/- through cash payment on credit. In the said deposited amount, a sum of Rs.1,90,000/- was deposited by the complainant through Gopal Singh (PW-2). The complainant gave a sum of total Rs.20,00,000.00/- to the respondent on credit. The complainant demanded his money. Then, the accused issued a cheque No.797972 dated 16.10.2017 payable on Indian Bank, Almora for the sum of Rs.20,00,000.00/- in regard to the credit amount given to the accused. The said cheque was deposited by the complainant in his account. The said cheque was dishonoured by the bank of the accused with note of "exceed agreement". The complainant acknowledged the dishonoured cheque on 02.11.2017 and a legal notice was sent to the accused on 09.11.2017, which was served upon the accused on 17.11.2017. A reply was given by the accused on false and misconceived facts. Since no payment was forthcoming pursuant to the said demand notice, a complaint case was filed by the complainant against the accused under Section 138 of the Act, 1881.

3. The learned trial court took cognizable on the complaint. The process under Section 204 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") was issued. The respondent-accused appeared before the learned trial court. Substance of accusation was recorded by the learned trial court, wherein the respondent- accused pleaded not guilty and claimed to be tried.

4. The complainant in order to prove his case got himself examined as PW1 and examined Gopal Singh (PW2).

5. The complainant filed Cheque-in-question No.797972 dated 16.10.2017 of Rs.20,00,000.00/-. Return Memo, copy of Registered Notice, Receipt, Acknowledgment, Reply of the accused and Statement of Bank Account.

6. The witness Gopal Singh (PW-2), a relative of the complainant, stated that the accused demanded money from the complainant. Then, on the request of the complainant, he deposited Rs.1,90,000/- in the account of the accused through Cheque No. 910747 dated 02.02.2017.

7. Statement of the accused was recorded under Section 313 of the Code. The accused examined Govind Ballabh Purohit (DW1) and Mohan Prasad Purohit (DW2).

8. The witness Govind Ballabh Purohit (DW1) and the witness Mohan Prasad Purohit (DW2) are brothers of the accused. Govind Ballabh Purohit (DW1) stated that he was a partner of the "Purohit Agency" and the witness Mohan Prasad Purohit (DW2) stated that he was the main Director of the "Purohit Agency". He further stated that there was no

commercial relationship between the complainant and the accused. According to this witness, the commercial relationship was between him and the complainant.

9. The accused filed copies of the statement of the bank account of Govind Ballabh Purohit of Punjab National Bank, C.D., and copies of pass-book of Mohan Prasad Purohit of Indian Bank, Almora and Punjab National Bank, Dharanaula, Almora.

10. The accused submitted his written arguments.

11. The learned trial court on hearing both the sides has recorded judgment of acquittal. The learned trial court did not draw presumption under Section 139 of the Act, 1881 and in view of the law laid down by the Hon'ble Supreme Court in the case of Aneeta Hada vs. Godfather Travels and Tours Pvt. Ltd., (2012) 5 SCC 661, held that without the firm being arraigned as an accused, the accused would not be liable for prosecution under Section 138 of the Act, 1881.

12. Challenging the judgment of acquittal, the complainant has filed this criminal appeal after obtaining special leave.

13. Heard learned counsel for both the parties and perused the record.

14. Mr. Sanjay Kumar, learned counsel for the appellant submitted that the "Purohit Agency" was being run in the proprietorship of the respondent and the Cheque-in- question was issued by the respondent putting his signature

with a seal of the "Purohit Agency" as a proprietor; the said cheque was given to the appellant to present in the bank; after acknowledged the dishonoured cheque on 02.11.2017, a demand notice was sent to the respondent on 09.11.2017, which was served upon the respondent on 17.11.2017; the reply was given by the respondent on false and misconceived facts; the amount of the cheque was not paid; the learned trial court committed wrong in holding that there was no legal debt or liability; the settled proposition of law is that no one should be left remediless; the learned trial court acquitted the respondent on the technical ground that without the firm being arraigned as an accused, the accused would not be liable for prosecution under Section 138 of the Act, 1881; the appellant-complainant should have been directed to amend his complaint; therefore, the learned trial court has miserably failed to appreciate the oral and documentary evidence on record in a proper and perspective manner. After completion the arguments, the learned counsel for the appellant furnished a decision rendered by the Hon'ble Supreme Court in Rangappa vs. Sri Mohan, (2010) 11 SCC 441.

15. On the other hand, Mr. Yogesh Kumar Pacholia, learned counsel for the respondent, argued in support of the impugned judgment and submitted that the appellant- complainant could not establish his case that the disputed cheque was issued by the respondent-accused in discharge of any legally enforceable debt or liability; it is admitted fact that the "Purohit Agency" was not being run in the proprietorship of the respondent; the "Purohit Agency" was a partnership firm; the witness Govind Ballabh Purohit (DW1) and the witness Mohan Prasad Purohit (DW2), brothers of

the respondent, were partner of the "Purohit Agency", therefore, without the said firm being arraigned as an accused, the respondent-accused would not be liable for prosecution under Section 138 of the Act, 1881.

16. Before examine the contentions of both the parties, it is necessary to refer the provisions of Section 138 of the Act, 1881. Section 138 of the Act, 1881 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 be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained in this Section shall apply unless--

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

Explanation.-- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability."

17. Section 138 of the Act, 1881 defines the ingredients of the offence. The following ingredients are required to be satisfied for making out a case under Section 138 of the Act, 1881:

(i) that a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any legally enforceable debt or other liability;

(ii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(iii) that cheque is returned by the bank unpaid, either because the amount of money standing to the credit of the 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 the bank;

(iv) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in

writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;

(v) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.

18. By the nature of the offence under Section 138 of the Act, 1881, the first ingredient constituting the offence is the fact that the accused drew a cheque and the second crucial question to determine applicability of Section 138 of the Act, 1881 is whether the cheque represents discharge of any legally enforceable debt or liability.

19. Section 118 of the Act, 1881 provides for presumptions as to negotiable instruments. Section 118 reads as follows:

"118. Presumptions as to negotiable instruments. --Until the contrary is proved, the following presumptions shall be made:--

(a) of consideration --that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;

(b) as to date --that every negotiable instrument bearing a date was made or drawn on such date;

(c) as to time of acceptance --that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;

(d) as to time of transfer --that every transfer of a negotiable instrument was made before its maturity;

                (e)     as to order of indorsement --that the
                        indorsements     appearing    upon   a

negotiable instrument were made in the order in which they appear thereon;

(f) as to stamp --that a lost promissory note, bill of exchange or cheque was duly stamped;

(g) that holder is a holder in due course

--that the holder of a negotiable instrument is a holder in due course:

Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him."

20. Next provision, which needs to be noticed is Section 139 of the Act, 1881. Section 139 of the Act, 1881 provides for drawing the presumption in favour of holder. Section 139 is to the following effect;

"139. Presumption in favour of holder- It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability."

21. In Kumar Exports vs. Sharma Carpets, (2009) 2 SCC 513, the Hon'ble Supreme Court considered the provisions of the Act, 1881. Referring to Sections 118, 138 and Section 139 of the Act, 1881, the Hon'ble Supreme Court laid down following in paragraph Nos. 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21:

"12. In order to determine the question whether offence punishable under Section 138 of the Act is made out against the appellant, it will be necessary to examine the scope and ambit of presumptions to be raised as envisaged by the provisions of Sections 118 and 139 of the Act. In a suit to enforce a simple contract, the plaintiff has to aver in his pleading that it was made for good consideration and must substantiate it by evidence. But to this rule, the negotiable instruments are an exception.

13. In a significant departure from the general rule applicable to contracts, Section 118 of the Act provides certain presumptions to be raised. This section lays down some special rules of evidence relating to presumptions. The reason for these presumptions is that, negotiable instrument passes from hand to hand on endorsement and it would make trading very difficult and negotiability of the instrument impossible, unless certain presumptions are made. The presumption, therefore, is a matter of principle to facilitate negotiability as well as trade. Section 118 of the Act provides presumptions to be raised until the contrary is proved (i) as to consideration, (ii) as to date of instrument, (iii) as to time of acceptance, (iv) as to time of transfer, (v) as to order of indorsements, (vi) as to appropriate stamp, and (vii) as to holder being a holder in due course.

14. Section 139 of the Act provides that it shall be presumed, unless the contrary is proved, that the holder of a cheque received

the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability.

15. Presumptions are devices by use of which the courts are enabled and entitled to pronounce on an issue notwithstanding that there is no evidence or insufficient evidence. Under the Evidence Act all presumptions must come under one or the other class of the three classes mentioned in the Act, namely, (1) "may presume" (rebuttable), (2) "shall presume" (rebuttable), and (3) "conclusive presumptions" (irrebuttable). The term "presumption" is used to designate an inference, affirmative or disaffirmative of the existence of a fact, conveniently called the "presumed fact" drawn by a judicial tribunal, by a process of probable reasoning from some matter of fact, either judicially noticed or admitted or established by legal evidence to the satisfaction of the tribunal.

Presumption literally means "taking as true without examination or proof".

16. Section 4 of the Evidence Act inter alia defines the words "may presume" and "shall presume" as follows:

"4. 'May presume'.--Whenever it is provided by this Act that the court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it:

'Shall presume'.--Whenever it is directed by this Act that the court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved:

In the former case, the court has an option to raise the presumption or not, but in the latter case, the court must necessarily raise the presumption. If in a case the court has an option to raise the presumption and raises the presumption, the distinction between the two categories of presumptions ceases and the fact is presumed, unless and until it is disproved.

17. Section 118 of the Act, inter alia, directs that it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration.

Section 139 of the Act stipulates that unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of whole or part of any debt or liability.

18. Applying the definition of the word "proved" in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the Act, it becomes evident that in a trial under Section 138 of the Act a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. As soon as the complainant discharges the burden to prove that the instrument, say a note, was executed by the accused, the rules of presumptions under Sections 118 and 139 of the Act help him shift the burden on the accused. The presumptions will live, exist and survive and shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability. A presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists.

19. The use of the phrase "until the contrary is proved" in Section 118 of the Act and use of the words "unless the contrary is proved" in Section 139 of the Act read with definitions of "may presume" and "shall presume" as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and

reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over.

20. The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-

existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may

likewise shift again on to the complainant.

The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act.

21. The accused has also an option to prove the non-existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant's rescue."

22. Before the learned trial court, the appellant- complainant was cross examined by the defence. In the cross-examination, defence denied accused's signature on the cheque. In the cross-examination of the complainant, the defence was that there was no transaction between the complainant and the accused and all the transactions of the complainant were with his brother Mohan Prasad Purohit and in the absence of his brother Mohan Prasad Purohit, the complainant had taken seven cheques from the shop of his brother. With respect to the cheque-in-question, which was dishonoured, the defence was that the said cheque was amongst the seven cheques, which was misused by the complainant.

23. Under Section 139 of the Act, 1881, once a cheque has been signed and issued in favour of the holder, there is statutory presumption that it is issued in discharge of a legally enforceable debt or liability. However, this presumption is a rebuttable one. If the accused will able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. Onus is upon the accused to rebut the presumption and to establish that the cheque in question was not given in respect of any debt or liability, however, for which it is not necessary for the accused to disprove the existence of consideration by way of direct evidence, even the evidence adduced on behalf of the complainant can be relied upon.

24. In Rangappa vs. Sri Mohan (Supra), the Hon'ble Supreme Court has held that in view of Section 139, it has to be presumed that a cheque is issued in discharge of any debt or other liability. It is for the accused to rebut the said presumption, though accused need not adduce his own evidence and can rely upon the material submitted by the complainant.

25. The respondent-accused denied his signature on the cheque. The accused has not led any evidence in support of this plea. The accused even did not come in the witness box to support his case. In the reply to the notice of the appellant-complainant, it was not mentioned that there was no transaction between the complainant and the accused and all the transactions of the complainant were with his brother Mohan Prasad Purohit. There was no case in the reply of the accused that the complainant had taken seven

cheques from the shop of his brother and the cheque-in- question was amongst the seven cheques, which was misused by the complainant. The statement of the accused under Section 313 of the Code of Criminal Procedure is not a substantive evidence of defence of the accused but only an opportunity to the accused to explain the incriminating circumstances appearing in the prosecution case. Mere statement of the accused may not be sufficient to rebut the presumption. Therefore, this Court does not see any basis in the contention of the learned counsel for the respondent that the respondent-accused has been successful in creating doubt in the mind of the Court with regard to the existence of the legally enforceable debt or liability.

26. Before the learned trial court, the case of the respondent-accused was that under Section 141 of the Act, 1881, unless and until the firm is arrayed as an accused, no vicarious liability can be fastened on its partner.

27. The learned counsel for the appellant contended that proprietorship is a business form where there is only one owner and there is no legal difference between the business and the owner and in the present case, the firm was running by one single person, i.e. the respondent- accused. His liability was unlimited and there was no legal distinction between the owner and the business.

28. The learned counsel for the respondent submitted that although, the sole proprietary concern is not a legal entity apart from the sole proprietor, therefore, there is no need to make the sole proprietary concern a party in the complaint, filed under Section 138 of the Act, 1881, but, in

the instant case, the respondent-accused was not the sole proprietor of the "Purohit Agency" and the "Purohit Agency" was not sole proprietary concern. The learned counsel for the respondent further submitted that the "Purohit Agency" was a partnership firm. He further submitted that the witness Govind Ballabh Purohit (DW1), brother of the respondent, clearly stated in his examination-in-chief that he was a partner of the "Purohit Agency" and the witness Mohan Prasad Purohit (DW2), brother of the respondent- accused, stated in his examination-in-chief that the firm of this witness was known as the "Purohit Agency" and he was the main Director of the "Purohit Agency". The learned counsel for the respondent argued that these statements of the witness Govind Ballabh Purohit (DW1) and Mohan Prasad Purohit (DW2) have not been challenged by the complainant in the cross-examination of these two witnesses. The learned counsel for the respondent further submitted that the complainant Ramesh Nagarkoti (PW1) has admitted in his cross-examination that the cheque-in- question belonged to the firm and the said cheque was given to him as a firm. The complainant further stated in his cross- examination that he did not know about the partners of the firm. The learned counsel for the respondent contended that in absence of partnership firm being arraigned as an accused, prosecution of a partner of the firm for the cheque bounce under Section 138 of the Act, 1881 is not maintainable.

29. In reply, the learned counsel for the appellant submitted that the settled proposition of law is that no one should be left remediless but the decision of the learned trial court acquitting the accused on the technical ground that in

absence of the firm being arraigned as an accused, the accused would not be liable, is not sustainable in the eyes of law because the complainant has been left remediless. The learned counsel for the appellant further submitted that the complainant should have been directed to amend his complaint but the learned trial court arbitrarily acquitted the accused. The learned counsel for the appellant submitted that this plea has also been taken specifically on the ground of appeal. In light of these arguments, however, the learned counsel for the appellant admitted the fact that the "Purohit Agency" was a partnership firm even though his submission is that the complaint cannot be dismissed on this technical ground.

30. Section 141 of the Act, 1881 stipulates the liability for the offence punishable under Section 138 of the Act, 1881 when the person committing such an offence happens to be a company i.e. when the drawer of the cheque happens to be a company. For the purpose of Section 141 of the Act, 1881, a firm comes within the ambit of a company.

31. Before the Hon'ble Supreme Court in the case of Aneeta Hada vs. Godfather Travels and Tours Pvt. Ltd. (Supra), the question for the consideration was, "whether an authorised signatory of a company would be liable for prosecution under Section 138 of the Negotiable Instruments Act, 1881 without the company being arraigned as an accused." The Hon'ble Supreme Court held as follows:

"21. At this juncture, we may refer to Section 141 which deals with offences by companies. As the spine of the controversy rests on the said provision, it is reproduced below:

"141. Offences by companies.--(1) If the person 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 Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this chapter.

(2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved 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."

22. On a reading of the said provision, it is plain as day that if a person who commits the offence under Section 138 of the Act is a company, the company as well as every person in charge of and responsible to the company for the conduct of business of the company at the time of commission of offence is deemed to be guilty of the offence.

The first proviso carves out under what circumstances the criminal liability would not be fastened. Sub-section (2) enlarges the criminal liability by incorporating the concepts of connivance, negligence and consent that engulfs many categories of officers. It is worth noting that in both the provisions, there is a "deemed" concept of criminal liability.

23. Section 139 of the Act creates a presumption in favour of the holder. The said provision has to be read in conjunction with Section 118(a) which occurs in Chapter XIII of the Act that deals with special rules of evidence. Section 140 stipulates the defence which may not be allowed in a prosecution under Section 138 of the Act. Thus, there is a deemed fiction in relation to criminal liability, presumption in favour of the holder, and denial of a defence in respect of certain aspects.

24. Section 141 uses the term "person" and refers it to a company. There is no trace of doubt that the company is a juristic person. The concept of corporate criminal liability is attracted to a corporation and company and it is so luminescent from the language employed under Section 141 of the Act. It is apposite to note that the present enactment is one where the company itself and certain categories of officers in certain circumstances are deemed to be guilty of the offence.

53. 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 dispute that as the liability is penal in nature, a strict construction of the provision would be necessitous and, in a way, the warrant.

59. 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. ......."

32. In Himanshu vs. B. Shivamurthy, (2019) 3 SCC 797, the Hon'ble Supreme Court held that in absence of company being arraigned as an accused, prosecution of Director of the Company for the cheque bounce under Section 138 of the Act, 1881 was not maintainable.

33. In the ratio of the aforesaid judgments of the Hon'ble Supreme Court, it is clear that if the cheque had been issued by the firm which was subsequently dishonoured, a partner of the firm would not be liable for prosecution under Section 138 of the Act, 1881 without the firm being arraigned as an accused. In the present complaint, filed by the appellant-complainant before the learned trial court, the firm is not arraigned as an accused.

34. In view of the above detailed discussions, I am of the view that the present appeal is devoid of merit. The present appeal is liable to be dismissed, the same is dismissed.

35. The respondent is directed to make compliance of Section 437-A of the Code of Criminal Procedure, 1973 within three weeks from the date of this order by appearing before the court concerned and execute a personal bond and two reliable sureties, each in the like amount to the

satisfaction of the court concerned, which shall be effective for a period of six months.

36. Let a copy of this order be sent to the concerned court for intimation and compliance.

_______________________ ALOK KUMAR VERMA, J.

Dt: 03rd March, 2021 JKJ/Neha