N K BHAGAT Vs. BISWANATH DEY @ BISWAKANTHA DEY

JUDGEMENT

(1.) By the instant application the petitioners have assailed the judgement and order dated 23/9/2011 passed by the learned Additional Sessions Judge Fast Track Court No. 1 Barasat in Criminal Appeal No. 8 of 2009 affirming the judgement of conviction dated 16/1/2009 passed by the learned Chief Judicial Magistrate, Barasat in C Case No. 868 of 2015 but setting aside the order of sentence passed therein. Petitioners have also challenged the judgement and order dated 25/7/2018 passed by the learned Additional Sessions Judge 3rd Fast Track Court Barasat in Criminal Appeal No. 29 of 2014 modifying the order dated 5/7/2014 passed by the learned Chief Judicial Magistrate Barasat in C Case No. 868 of 2015 under section 138 of the Negotiable Instruments Act whereby the petitioners were sentenced by the trial Court to pay compensation of Rs. 3 lacs and also to pay a fine of Rs. 2,000/- each in default of which to suffer simple imprisonment for two years and three months respectively. The aforesaid order of sentence was modified by the appellate Court to the extent that the petitioners herein/appellants were directed to pay compensation of Rs. 1,50,000/- each in default of which to suffer simple imprisonment for six months each.

(2.) The facts in brief giving rise to the present revisional application may be summarized as follows:

(3.) Learned counsel for the petitioners argued that the partnership firm named "M/S Adeptecs" being the drawer of the cheque in question should have been arraigned and impleaded as an accused which is a condition precedent for invoking the vicarious liability of the partners/directors of the said firm/company under section 141 of the Negotiable Instruments Act. It is pointed out that the cheque was issued by the partnership firm and signed by the accused no. 2/petitioner no. 2 as an office bearer of the firm and as its authorized signatory. To fasten the liability upon the partners of the firm or upon the directors of the company, impleading the Company/firm as an accused is imperative. M/S Adeptecs, the drawer of the cheque not having been arraigned as an accused, the judgement and order of conviction and sentence against the petitioners are not sustainable. It is canvassed that the proviso to section 138(b) of the Negotiable Instruments Act was not complied by the holder of the cheque/complainant. Since no notice of demand was served upon M/S Adeptecs, the drawer of the cheque, the petitioners could not be prosecuted in their individual capacity without impleading the firm as an accused in view of the fact that the alleged transaction was between M/S Adeptecs and the opposite party herein/complainant. To buttress his argument learned counsel for the petitioners relied on the decision of the Supreme Court in the case of Aneeta Hada versus Godfather Travels and Tours Private Limited reported in, 2012 5 SCC 661. Reference has also been made to the case of Ajit Balse versus Ranga Karkere reported in, 2015 15 SCC 748 and Himanshu versus B. Shivamurthy and another reported in, 2019 2 Scale 100.