IMPORTANT POINT
Dishonour of cheque – Company is a juristic person and Company can have criminal liability—In case of commission of offence by company, express condition of company being joined is imperative to attract vicarious liability of other category of officers.

JUDGMENT (CAV)

This appeal under Section 378 of Cr.P.C. arises out of the judgment and order dated 08.07.2022 passed by learned Additional Chief Metropolitan Magistrate, N.I. Act Court No.31, Ahmedabad below Exh.1 in Criminal Case No.3214 of 2015. By the said judgment and order, the learned Magistrate has proceeded to exercise the powers conferred under Section 256 of the Code of Criminal Procedure by recording the absence of complainant, thus, acquitting the respondent No.2-original accused for the offence punishable under Section 138 of the N.I. Act.

2. Heard Ms. Zeel Raval, learned advocate on record for the appellant, Mr. Apurva Kapadia, learned advocate on record for the respondent No.2 and Ms. C.M. Shah, learned APP appearing for the respondent-State.

3. Brief facts leading the present case in nutshell are as under:

3.1 That appellant is the complainant who has instituted a complaint under the provisions of Section 138 of the N.I. Act against the respondent No.2 herein. The case of the appellant is to the effect that the appellant and the respondent No.2 entered into an agreement on 07.10.2013 for the purpose of operation and maintenance of bus-depot and LED’s -LCD’s located at the bus depot of GSRTC. That as per the said agreement, the appellant used to raise bills and the respondent No.2 used to make payments by way of cheque or cash.

3.2 That during October-2013 to April-2014, the bill was raised for an amount of Rs.48,04,528/- from which an amount of Rs.21,10,506/- was received and an amount of Rs.26,94,022/- was outstanding. That the respondent No.2 in furtherance to make the outstanding payment had given cheques being (I) Cheque No.084005 amounting to Rs.4,00,000/- dated 05.04.2014, (ii) Cheque No.084006 amounting to Rs.5,00,000/- dated 10.04.2014 and (iii) Cheque No.084017 amounting to Rs.1,20,000/- dated 28.06.2014.

3.3 That aforesaid cheque Nos.1 and 2 were given before and the cheque No.3 was given on 28.06.2014 and on the said day, the respondent No.2 asked the appellant to deposit all the three cheques with an assurance amount would be realized. While depositing the said cheques, third cheque being Cheque No.084017 was issued in the name of self and hence, the appellant on 28.06.2014 went to deposit the same to withdraw the amount but the same was not cleared as the “funds were insufficient”. Thereafter, both the remaining i.e. aforesaid cheque Nos.1 and 2 were also deposited and both were not cleared, and therefore, the appellant herein issued legal notice for raising prosecution under Section 138 of the N.I. Act., to which, the present respondent No.2 chose not to reply.

3.4 After recording the verification, summons were issued to respondent No.2 herein and the said complaint, which was earlier registered as (Old) Criminal Case No.756 of 2014 before the Court of Ld. Judicial Magistrate First Class, Unjha was thereafter, transferred by way of an order under Exh.1 dated 15.12.2015 and was numbered as (New) Criminal Case No.3214 of 2015 before the learned Additional Chief Metropolitan Magistrate, Ahmedabad vide order dated 29.12.2015, process was issued. The learned Magistrate having noticed absence of appellant, proceeded to exercise power under Section 256 of Cr.P.C. thereby.

3.5 The respondent No.2 could not have been acquitted solely on the ground that the present appellant has not taken enough steps to proceed with the matter and only on the ground that the appellant had remained not present during the proceedings on certain dates, the present respondent No.2 was acquitted. The respondent No.2 has been acquitted only on such ground, which is not tenable. That court below has not considered implication of presumption under Section 118(a) and 139 of the N.I. Act.

3.6 That trial court had issued notice for appearance and the respondent No.2, for the first time, had appeared on 06.07.2017 and plea was recorded. Thereafter, the respondent No.2 had approached the Hon’ble High Court by way of filing qua