The absence of the company as a party precludes the vicarious liability of its directors under Section 138 of the Negotiable Instruments Act.

JUDGMENT :

Rakesh Kainthla, J.

The present revision is directed against the judgment dated 30.06.2011, passed by learned Sessions Judge, Kullu, H.P. (learned Appellate Court), vide which the judgment of conviction and order of sentence dated 01.02.2011, passed by learned Judicial Magistrate, First ClassManali, H.P. (learned Trial Court) were upheld (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.)

2. Briefly stated, the facts giving rise to the present revision are that the complainant filed a complaint before the learned Trial Court against the accused for the commission of an offence punishable under Section 138 of the Negotiable Instruments (NI) Act. It was asserted that the complainant is a body corporate having its head office at Dharamshala and Branch at Manali. It is engaged in the business of banking. The accused raised a loan from the complainant and issued a cheque dated 22.10.2007 for an amount of Rs. 1 lac to discharge his liability. The complainant presented the cheque before the bank of the accused, but it was dishonoured with an endorsement of insufficient funds. The complainant issued a notice to the accused asking him to pay the amount of Rs. 1 lac within 15 days from the date of receipt of the notice. However, the accused failed to pay the amount despite the receipt of the notice. Hence, the complaint was filed before the learned Trial Court to take action against the accused as per the law.

3. The learned Trial Court, found sufficient reasons to summon the accused. When the accused appeared, a notice of accusation was put to him for the commission of an offence punishable under Section 138 of N. I Act, to which he pleaded not guilty and claimed to be tried.

4. The complainant examined Man Singh (CW-1) and Nitin Hazari (CW-2).

5. The accused admitted in his statement recorded under Section 313 of Cr. P.C. that the complainant is engaged in banking activities and Man Singh Thakur was authorised by the complainant to file the complaint. He stated that he had issued the cheque as security to M/s Chachoga Handloom Co-operative Society. He admitted that the cheque was dishonoured with an endorsement of ‘insufficient funds’. He stated that he had only received a notice from the Court. He examined Luder Chand (DW-1)

6. Learned Trial Court held that the accused did not dispute the issuance of the cheque. There is a presumption that the cheque was issued in discharge of the legal liability. It was proved that the accused is the Director of M/s Chachoga Handloom Co-operative Society since its inception. The Society had taken a loan of Rs. 47 lacs and was to pay Rs. 97 lacs. Therefore, the cheque was issued in discharge of the legal liability. It was dishonoured due to insufficient funds, and the accused failed to pay the amount despite receipt of a valid notice of the demand. Hence, the accused was convicted of the commission of an offence punishable under Section 138 of the NI Act and was sentenced to undergo simple imprisonment for six months and pay a compensation of Rs. 1,50,000/- to the complainant.

7. Being aggrieved by the judgments and order passed by the learned Trial Court, the accused filed an appeal which was decided by the learned Sessions Judge (learned Appellate Court). Learned Sessions Judge concurred with the findings of the learned Trial Court that the cheque is presumed to be issued in the discharge of legal liability. The accused failed to rebut the presumption of consideration attached to the cheque. The cheque was dishonoured with an endorsement of insufficient funds. The accused had failed to pay the amount despite the receipt of a valid notice of demand. Hence, the accused was rightly convicted and sentenced. Consequently, the appeal filed by the accused was dismissed.

8. Being aggrieved by the judgments and order passed by the learned Courts below, the accused has filed the present revision, asserting that the learned Court