Specific averments are required to establish vicarious liability, and vicarious liability arises only when the company or firm commits the offense as the primary offender.

JUDGMENT

G. Satapathy, J. - The petitioner in this CRLMC seeks the indulgence of the Court U/S.482 of Cr.P.C. to quash the complaint in 1.C.C. Case No.60 of 2014 of the Court of learned S.D.J.M., Angul in an application U/S.482 of Cr.P.C. for not arraigning the trust as an accused in terms of Section 141 of Negotiable Instruments Act, 1881 (for short the N.I. Act).

2. Facts in precise are opposite party No.2-Kanheilal Choudhury instituted the complaint in 1.C.C. Case No.60 of 2014 against the petitioner as General Secretary, M/s. Bijay Laxmi Trust and opposite party No.3- Dinabandhu Mishra in the Court of learned S.D.J.M., Angul for commission of offences U/S.138 of N.I. Act on account of dishonour of cheque bearing No.083955 dated 31.12.2013 issued by opposite party No.3 as President of M/s. Bijay Laxmi Trust for an amount of Rs.7,30,550/- (Rupees Seven Lakh Thirty Thousand and Five Hundred Fifty) as the cheque on presentation returned back to opposite party No.2 as unpaid with endorsement from Bank of Baroda, Angul Branch on 18.02.2014 'account closed'. Opposite party No.2 accordingly issued Demand notice to petitioner and opposite party No.3 within the prescribed period and when they did not respond, opposite party No.2 instituted the aforesaid complaint. On perusal of complaint and initial statement of complainant filed in the shape of affidavit together with documents annexed with the affidavit, learned S.D.J.M., Angul by the impugned order took cognizance of offence U/S.138 of N.I. Act and issued process in the form of summons to the petitioner and opposite party No.3. On receipt of summon, the petitioner approach this Court by way of this CRLMC petition U/S.482 of Cr.P.C.

3. In the course of hearing of the CRLMC, Mr. Mohit Agarwal, learned counsel for the petitioner has raised a preliminary objection at the threshold on the maintainability of the complaint for want of trust arraigned as an accused in pursuance to the provision of Section 141 of N.I. Act. In raising such objection, learned counsel for the petitioner has submitted that the cheque in question was neither issued by the petitioner in individual capacity nor in the capacity of a General Secretary of the Trust, but the cheque was issued by the opposite party No.3 as the President of Trust and thereby, primarily the criminal liability cannot be fastened on the petitioner. It is further submitted by him that Section 141 of N.I. Act mandates impletion of the trust as a party since the cheque in question was issued by a person for/on behalf of the trust and when the mandatory provision has not been complied, the complaint itself is not maintainable. Learned counsel for the petitioner by submitting inter alia above issue of maintainability of the complaint prays to quash it by relying upon the decisions in Dillip Hariramani v. Bank of Baroda; AIR 2022 SC 2258 and Aparna A. Saha v. Self Developers Pvt. Ltd and others; AIR 2013 SC 3210.

4. In reply, Mr. Amit Prasad Bose, learned counsel for opposite party No.2 has submitted that although the trust has not been made as an accused in the complaint, but that per se would not absolve the petitioner from the liability arising out of cheque issued for the trust and she, accordingly, is vicariously liable as a General Secretary of the Trust with her husband-opposite party No.3 who had issued the cheque for the trust and the provisions of Section 141 of N.I. Act would not stand on the way of discharge of the liability of the petitioner and her husband arising out of the cheque which was dishonored and thereby, the complaint is squarely maintainable. It is, therefore, contended by the learned counsel for the opposite party No.2 that not only the complaint is maintainable but also the order passed by the learned S.D.J.M., Angul taking cognizance of offence is valid and the present CRLMC being unmerited is liable to be dismisse