The main legal point established in the judgment is that the vicarious liability under Section 141 of the Negotiable Instrument Act does not extend to a sole proprietorship concern.

Saumitra Dayal Singh, J.

Heard learned counsel for the parties.

2. The present 482 Cr.P.C. application has been filed to quash the judgment and order dated 27.07.2017 passed by Additional Sessions Judge, Court No.5, Allahabad in Criminal Revision No.345/2016 (Manoj Singh Vs. Shakeel Ahmad) as well as order dated 20.07.2016 passed by Additional Chief Judicial Magistrate, Court No.5, Allahabad in Complaint Case No.485 of 2014, under Section 138 Negotiable Instrument Act, P.S- Jhunsi, District-Allahabad.

3. Learned counsel for the applicant submits, the complaint is wholly incompetent since the cheque (giving rise to the complaint) was issued by the 'company' M/s Manoj Rice Mill that was not impleaded as an accused person (in the complaint). Reliance has been placed on Section 141 of the Negotiable Instrument Act, 1881 (hereinafter referred to as the Act). The issue is stated to be covered by a Single Judge decision of this Court in the Application u/s 482 No. 31101 of 2013 (Hitendra Kishan Lal Jain Vs. State of U.P. & Anr.), decided on 13.12.2017.

4. That case involved default/dishonour of a cheque issued by a proprietorship firm. After referring to Section 141 of the Act, and relying in decision of the Supreme Court in the case of Aneeta Haada Vs. Godfather Travels and Tours Private Limited and Anr.,2014 6 SCC(Cri) 845, the learned Single Judge observed:-

"Since cheques in question were belonging to a Firm and vide explanation appended to Section 141 of the Negotiable Instrument Act, firms or other association of individual are also included in the word 'Company'. Hon'ble Supreme Court in the case of Aneeta Hada (supra) has clearly held that if cheque is issued by a Firm or Company, the Firm / Company must be arrayed as an accused. Same view has been expressed by the Hon'ble Supreme Court in the cases relied upon by the learned counsel for the applicant that until and unless Company or Firm is arrayed as an accused, director or other officials of the Company/Firm cannot be prosecuted / punished.

............................................................................Thus, on the sole ground of non-arraigning of the Firm as an accused in the complaint, the submissions raised by the learned counsel for the applicant that complaint proceedings are an abuse of process of law is acceptable. It is also pertinent to mention here that it will be immaterial whether the Firm running in the name and style of 'New Arihant Trading' is a proprietorship Firm or registered Firm."

5. Shri Madan Mohan Srivastava, learned counsel for the opposite party no. 2 and Sri Ankit Srivastava, learned AGA, on the other hand submit, the position in law is otherwise. The provision of Section 141 of the Act would not apply in the case of a sole proprietorship concern and that it would be restricted to a duly incorporated company or a partnership firm or an association of persons only.

6. Having heard learned counsel for the parties and having perused the record, in the first place there is no dispute to the fact that the applicant was running a sole proprietary concern in the name M/s Manoj Rice Mill. It was neither a partnership firm nor a company nor any other association of persons. Then, the provision of Section 141 of the Act reads:-

"141. Offences by companies.-

(1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence. [Provided further that where a person is nominated as a Director of a company by vi