HEMANG BIHARILAL SHAH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard Mr.Vaibhav Shukla, learned advocate, on record, for the applicant - original complainant.

(2.) This application is filed under Sec. 378(4) of the Code of Criminal Procedure, 1973, seeking leave against th the impugned judgment and order dtd. 5/3/2020 passed by the Court of learned Additional Chief Metropolitan Magistrate, N.I. Act, Court No.36, Ahmedabad in Criminal Case No.3600042 of 2016. By the said judgment and order, the learned Magistrate has proceeded to record acquittal of present respondent No.2 - original accused for the alleged offence under Sec. 138 of N.I. Act.

(3.) Mr. Shukla, learned advocate has invited attention of this Court to the reasons assigned by the learned Magistrate while recording the impugned order of acquittal. He has submitted that the learned Magistrate failed to appreciate that the accused was joined in his capacity as director of the Company, even the close examination of the cause title of the complaint goes to indicate that the name of the Company as well as the address of the Company were clearly mentioned in the cause title of the complaint. He has further submitted that the learned Magistrate committed error by not appreciating the fact that the statutory notice, under Sec. 138 of the N.I. Act, though was addressed in the name of the respondent - accused, but the same was addressed in his capacity as director of the Company and hence, the Company was also duly served with the statutory notice. He has further submitted that the learned Magistrate has also examined the case of the complainant on merits. The complainant has been successful in proving his case with regard to existence of legally enforceable debt. However, the learned Magistrate has proceeded to dismiss the complaint on the ground that the complainant has not joined Company as party respondent and no legal notice under Sec. 138 of the N.I. Act has been served upon the Company. He has further submitted that in fact notice was received on behalf of the Company evident from the RPAD slip placed on record vide 'Enclosure-1'. He therefore, submitted that the aforesaid approach of learned Magistrate, taking into consideration the technical aspect, has resulted into the acquittal of the accused, who otherwise was liable to be punished under Sec. 138 of the N.I. Act. He urged this Court to admit the appeal. 5. Having heard the learned advocate for the applicant and having perused the impugned order and the grounds raised in the appeal, the learned Magistrate has taken into consideration the legal position settled by the Hon'ble Apex Court in the case of Aneeta Hada vs. M/S Godfather Travels & Tours reported in (2012) 5 SCC 661. The learned Magistrate has also taken into consideration the statutory provision more particularly, Sec. 141 of the N.I. Act, which provides to deal with the offences by Company under Sec. 138 of the N.I. Act. Even the plain reading of the aforesaid provision goes to indicate that not only the Company is liable to be proceeded and punished but even the person, who, at the time of commission of alleged offence, is in-charge of and responsible of the conduct of the business of company is also liable to be proceeded and punished accordingly for the offence. The words "as well as the Company" goes to indicate that the joining of Company as party respondent is imperative and the aforesaid provision has been examined by the Hon'ble Supreme Court in the judgment of Aneeta Hada (supra). The relevant observations of the Hon'ble Apex Court are reproduced as under :