LAWS(KAR)-2015-10-47

AMALGIRIS AND ORS. Vs. MSPL LIMITED

Decided On October 07, 2015
Amalgiris And Ors. Appellant
V/S
MSPL LIMITED Respondents

JUDGEMENT

(1.) BY judgment of conviction and order of sentence dated 23.01.2013 in C.C. No. 238/2011 on the file of Principal Civil Judge and JMFC, Hospet, the accused have been convicted for the offence punishable under Section 138 of N.I. Act and have been sentenced to pay a fine of Rs. 10,000/ - each and in default to undergo simple imprisonment for a period of three months apart from ordering to pay compensation of Rs. 2,00,00,000/ - to the complainant by accused Nos. 2 and 3 and in default to undergo simple imprisonment for a period of one year. The judgment of conviction and order of sentence passed by the Magistrate has been confirmed in Crl. A. No. 24/2013 on the file of III Addl. District and Sessions Judge, Bellary sitting at Hospet by order dated 07.06.2014. Questioning the legality and correctness of the orders passed by the Magistrate and the Sessions Judge, this revision petition is preferred by the accused under Section 397 r/w Section 401 of Cr.P.C.

(2.) THE facts which gave rise to this petition are as under:

(3.) THE learned counsel for the petitioners/accused vehemently argued before me that the offence committed by the firm is sine qua non for convicting the partners of the firm. A firm cannot be prosecuted for the offence under section 138 of the N.I. Act, unless the demand notice is served upon the firm demanding the payment of cheque amount. In the case on hand, no notice was issued or served upon the firm and therefore the prosecution against the firm was not maintainable and as such the conviction of the firm is bad in law. The learned counsel would further submit that unless the firm is convicted, vicarious liability cannot be fastened on the partners of the firm for the acts of the firm. Pointing out at Ex -P3 -the demand notice, the learned counsel submitted that the demand notice was not issued or served upon the firm and thereby ingredients of section 138 of 141 of the N.I. Act are not fulfilled. Further it is submitted that there are no averments in the complaint in compliance of section 141 of the N.I. Act to show that the petitioner Nos. 2 and 3 were incharge and responsible for the conduct of the business of the firm and therefore fastening the vicarious liability of the firm on petitioner Nos. 2 and 3 being the partners is not justified. It is further submitted that the learned Magistrate having imposed the sentence of fine of Rs. 10,000/ - was not justified in awarding compensation of Rs. 2,00,00,000/ - under section 357(3) of Cr.P.C. The learned counsel placing reliance on the following decisions in support of his arguments sought to set -aside the judgment of conviction and sentence: -