Delhi High Court - Orders
Himanshu vs Tcns Clothing Co. Ltd on 31 August, 2022
Author: Yogesh Khanna
Bench: Yogesh Khanna
$~51
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(CRL) 1989/2022
HIMANSHU
..... Petitioner
Through: Mr.Gagan Gandhi, Ms.Ratakshi
Sarvaria, Advocates.
versus
TCNS CLOTHING CO. LTD
..... Respondent
Through: Mr.Nitin Sharma, Advocate.
CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA
ORDER
% 31.08.2022 CRL M.A. No.17237/2022
1. Exemption allowed, subject to all just exceptions.
2. The application stands disposed of.
W.P.(CRL) 1989/2022 & CRL M.A. No.17238/2022
3. This petition is filed for quashing of Criminal Complaint No.2542/2019 under Section 138 Negotiable Instruments Act and the proceedings emanating therefrom.
4. The learned counsel for the petitioner submits the complaint has been filed by the respondent against the petitioner as a proprietor of M/s.A & A Enterprises, whereas the said company is a partnership firm. It is alleged the firm is not made a party to the complaint and further the subject cheques were also not signed by the petitioner but were signed by the authorized representative of the firm M/s.A & A Enterprises.
5. It is stated to invoke vicarious liability, the partnership firm ought to Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:01.09.2022 14:44 have been made a party in the complaint. Reference is made to Dilip Hariramani vs. Bank of Baroda in CRL.A.767/2022 wherein vide order dated 09.05.2022 the Hon'ble Supreme Court held that:
"14. The provisions of Section 141 impose vicarious liability by deeming fiction which presupposes and requires the commission of the offence by the company or firm. Therefore, unless the company or firm has committed the offence as a principal accused, the persons mentioned in sub-section (1) or (2) would not be liable and convicted as vicariously liable. Section 141 of the NI Act extends vicarious criminal liability to officers associated with the company or firm when one of the twin requirements of Section 141 has been satisfied, which person(s) then, by deeming fiction, s made vicariously liable and punished. However, such vicarious liability arises only when the company or firm commits the offence as the primary offender. This view has been subsequently followed in Sharad Kumar Sanghi v. Sangita Rane, Himanshu v. B. Shivamurthy and Another, and Hindustan Unilever Limited v. State of Madhya Pradesh. The exception carved out in Aneeta Hada (supra), which applies when there is a legal bar for prosecuting a company or a firm, is not felicitous for the present case. No such plea or assertion is made by the respondent."
6. In view of the above, issue notice. The learned counsel for the respondent is present and accepts notice. Let a reply to the petition be filed by the respondent within four weeks from today with an advance copy to the learned counsel for the petitioner.
7. List on 09.12.2022 and in the meanwhile the petitioner is exempted to appear through his counsel before the learned Trial Court except the dates when his personal appearance is urgently required. Order dasti.
YOGESH KHANNA, J.
AUGUST 31, 2022 DU Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:01.09.2022 14:44