Point of Law: Section 141 of N.I. Act deals with offences by companies.

ORDER :

This revision petition has been filed under Sections 397 and 401 of Code of Criminal Procedure (hereinafter referred as Cr.P.C. for convenience). The revision petitioner is the sole accused in C.C.No.511/2010 on the files of the Judicial First Class Magistrate Court, Kodungallur and the appellant in Crl.A.No.439/2012 on the files of the Additional Sessions Judge-IV, Thrissur. The respondents herein are the original complainant as well as State of Kerala.

2. I would like to refer the parties in this revision petition as 'accused' and 'complainant', for convenience.

3. Heard both sides.

4. In this matter, prosecution case runs on the premise that a cheque for Rs.2,40,000/-dated 15.05.2010 issued by the accused in favour of the complainant got dishonored for the reason “exceeds arrangement”, when the same was presented for collection. Soon after the dishonor, legal notice was issued demanding the said amount. Since the amount was not paid, the complainant launched prosecution against the accused alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred as N.I.Act for convenience).

5. The trial court secured the presence of accused and complainant for trial and finally tried the matter. During trial, PW1 was examined and Exts.P1 to P15 marked on the side of the complainant.

6. Although opportunity was given to the accused to adduce defence evidence after questioning the accused under Section 313(1)(b) of the Cr.P.C., no witnesses examined and Exhibits marked on the side of the defence.

7. On appreciation of evidence, the learned Magistrate found that the accused committed the offence punishable under Section 138 of the N.I. Act and accordingly, the accused was sentenced to undergo simple imprisonment till rising of the Court and to pay fine of Rs.2,24,000/-. The amount of fine was ordered to be paid as compensation to the complainant. In default of payment of fine, simple imprisonment for two months also was imposed.

8. When the matter was taken in appeal, the learned Special Judge confirmed the conviction as well as the sentence imposed by the trial court.

9. While assailing the veracity of the concurrent verdicts, the learned counsel for the accused/revision petitioner, submitted that Ext.P1 cheque in this matter is a cheque in the name of “Ganga Marbles and Granites”, a partnership firm and the cheque was signed by the Managing partner. Therefore, in order to succeed a prosecution under Section 138 of the N.I. Act, the firm must be arrayed as a party and otherwise the entire prosecution is vitiated. In this connection, the learned counsel for the accused/revision petitioner pointed out Section 141 of the N.I. Act and submitted that this Court has considered this legal question as per the order in Crl.R.P. No.39/2016 dated 10.07.2023 reported in P.I. Moideen kutty v. Abdul Rasheed V. and Another [2023 ICO 894] and held as under:

“15. While answering the above questions, the Apex Court held that the company cannot be impleaded as an additional accused subsequent to the filing of the complaint, once limitation prescribed for taking cognizance of the offence under Section 142 has expired. Similarly, it has been held that if the complainant fails to make specific averments against the company in the complaint alleging commission of offence punishable under Section 138 of the N.I. Act, the same cannot be rectified by taking recourse to general principles of criminal jurisprudence. It has been held further that unless the company or firm has committed an offence punishable under Section 138 of the N.I. Act as a principal accused, persons mentioned in subsection (1) and (2) of Section 141 of the N.I. Act would not be liable to be convicted on the basis of the principles of vicarious liability. Further, it has been held that in a prosecution alleging commission of offence punishable under Section 138 of the N.I. Act, the director of a company would not be liable to be proceeded wi