ORAL JUDGMENT

1. Judgement and order dated 30.08.2014 passed by the learned 3rd Sessions Judge, Anand in Criminal Appeal No. 34 of 2014 after affirming the judgement and order dated 12.03.2013 passed by the learned 8th Additional Chief Judicial Magistrate, Anand recording conviction for the appellants for the offence punishable under section 138 of the Negotiable Instruments Act, 1881 ( for short ‘N.I.Act’) is assailed in the revisional jurisdiction of this court.

2. It is unnecessary for this court to refer to the factual matrix of the case in detail in light of the question of law raised in this Criminal Revision Application; suffice it to say that the two accused namely Sharma Pramod Narayanprasad and Bhargava Satish Ramchandra were convicted under the above provisions as the partners of Gajanand Developers.

3. The question of law raised herein is whether in absence of indictment of partnership firm as co-accused for the offence punishable under section 138 of the N.I. Act, the prosecution would be maintainable?

4. The rival contentions further give rise to the following question: Is it permissible to go beyond section 141 of the N.I. Act for interpretation of the expression “firm” applied in Explanation to section 141 of the N.I.

Act?

4.1 For ready reference the said provision is quoted hereunder:

[ 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:

1[Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter.]

(2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly Explanation.— For the purposes of this section,—

(a) “company” means any body corporate and includes a firm or other association of individuals; and (b) “director”, in relation to a firm, means a partner in the firm.]

5. The provision received consideration from the Apex Court in detailed judgement in Aneeta Hada versus Godfather Travels and Tours Private Limited and other allied – 2012(5) SCC 661. After considering the case law cited before it, the relevant considerations are found in paras 58 and 59 of the pronouncement which read thus:

“58. Applying the doctrine of strict construction, we are of the considered opinion that commission of offence by the company is an express condition precedent to attract the vicarious liability of others. Thus, the words “as well as the company” appearing in the Section make it absolutely unmistakably clear that when the company can be prosecuted, then only the persons mentioned in the other categories could be vicariously liable for the offence subject to the averments in the petition and proof thereof. One cannot be oblivious of the fact that the company is a juristic person and it has its own respectability. If a finding is recorded