IMPORTANT POINT
No person can be convicted and sentenced without being arrayed as accused.

R.S. Chauhan, J.—The petitioner has challenged the judgment dated 7-1- 2008, passed by Additional Chief Judicial Magistrate, Sawai Madhopur, whereby the petitioner has been convicted for the offence under section 138, Negotiable Instruments Act, 1881 (‘the Act’ for short) and has been sentenced to suffer imprisonment of six months, and has been imposed with a fine of Rs.60,000/-, and has been directed to further suffer one and a half month of simple imprisonment in default thereof. The petitioner is also aggrieved by the judgment dated 23-4-2011, passed by Additional Sessions Judge, Sawai Madhopur, whereby the learned Judge has upheld the judgment dated 7-1-2008.

2. The brief facts of the case are that on 28-2-2000, the complainant respondent No.1, Pushpendra Kumar Jain, filed a complaint only against Lok Vikas Finance Corporation Limited, through Managing Director, Lokesh Kumar Singh. The complainant did not array the petitioner as an accused. It was alleged in the complaint that the cheque, issued for payment of the deposits, made in recurring deposit account of the company, has bounced. Despite the service of the statutory notice, the payment has not been made. On 15-2- 2001, the learned trial court took cognizance of the offence under Section 138 of the Act against the Corporation. No cognizance was taken against the petitioner. The petitioner, on behalf of the company, denied the allegation and prayed for trial. However, vide judgment dated 7-1-2008, the trial court held the petitioner guilty for the offence under section 138 of the Act, and convicted and sentenced him, as mentioned above. The learned trial court did not convict the Corporation. The petitioner preferred an appeal before the appellate court. Vide judgment dated 23-4-2011, the appellate court partly confirmed the judgment dated 7-1- 2008. However, as the petitioner failed to appear before the appellate court due to illness, still the appellate court directed that a case against the petitioner be registered for offence under section 229-A IPC. Hence, the present revision petition.

3. Mr. S.R. Bajwa, Senior Advocate, and the learned counsel for the petitioner, has raised a single issue before this court, namely whether the petitioner could be convicted for the offence under section 138 of the Act, especially when he was never arrayed as an accused in the complaint? According to the learned counsel section 141 of the Act deals with “offence by companies”. It prescribes that besides the company, those persons who are incharge for the conduct and business of the company shall be liable to be proceeded against and punished. According to him the complainant had arrayed only the company as accused; he had not arrayed the petitioner in his individual capacity as an accused. Therefore, the petitioner was never “proceeded against”. Therefore, the petitioner cannot be convicted and sentenced for an offence committed by the company. Secondly, Section 141 of the Act, provides certain defenses to those who are in charge of the company, in case they were to be proceeded against along with the company. However, as the petitioner was never arrayed as an accused, the opportunity to invoke those defenses were never given to him. Hence, the petitioner has been convicted and sentenced without an opportunity of hearing. Therefore, the conviction and sentence cannot be sustained in the eyes of law. Lastly, the reasoning given by the learned appellate court for sustaining the conviction and sentence is that at the relevant time the petitioner was Managing Director, therefore, he is liable for the acts of the company. However, such a reasoning entirely misses the legal issue raised on behalf of the petitioner. Therefore, the impugned judgment dated 23-4-2011, as well as the judgment dated 7-1-2008 are unsustainable. Learned counsel has placed reliance on Sheoratan Agarwal v. State of M.P.1 in order to buttress his contentions.

4. On the other hand, Mr. Manmohan Khetan, the l