Asha Arora, J. - (1.) By the instant application the petitioners have assailed the judgement and order dated 23/9/2011 passed by the learned Additional Sessions Judge Fast Track Court No. 1 Barasat in Criminal Appeal No. 8 of 2009 affirming the judgement of conviction dated 16/1/2009 passed by the learned Chief Judicial Magistrate, Barasat in C Case No. 868 of 2015 but setting aside the order of sentence passed therein. Petitioners have also challenged the judgement and order dated 25/7/2018 passed by the learned Additional Sessions Judge 3rd Fast Track Court Barasat in Criminal Appeal No. 29 of 2014 modifying the order dated 5/7/2014 passed by the learned Chief Judicial Magistrate Barasat in C Case No. 868 of 2015 under section 138 of the Negotiable Instruments Act whereby the petitioners were sentenced by the trial Court to pay compensation of Rs. 3 lacs and also to pay a fine of Rs. 2,000/- each in default of which to suffer simple imprisonment for two years and three months respectively. The aforesaid order of sentence was modified by the appellate Court to the extent that the petitioners herein/appellants were directed to pay compensation of Rs. 1,50,000/- each in default of which to suffer simple imprisonment for six months each.
(2.) The facts in brief giving rise to the present revisional application may be summarized as follows: In the year 2005 the opposite party herein/complainant filed a complaint under section 138 of the Negotiable Instruments Act against the present petitioners in the court of the Chief Judicial Magistrate Barasat, alleging that the accused no. 2/petitioner no. 2 as the authorized signatory of the partnership firm named "Adeptecs" issued a cheque dated 8/6/2005 for Rs. 1,50,000/- for receiving the goods from the factory of the complainant. On being presented to the bank, the aforesaid cheque was dishonoured with endorsement "payment stopped by Drawer". A demand notice was sent to the accused/petitioners who failed to make payment within the stipulated period despite receipt of the notice so a complaint under section 138 of the Negotiable Instruments Act was filed against them which was registered as C Case No. 868 of 2015. Upon conclusion of trial, the learned Magistrate, after considering the evidence convicted the accusedpetitioners for the offence under section 138 of the Act and sentenced them as aforesaid. The petitioners preferred an appeal before the Sessions Judge at Barasat against the judgement and order of conviction and sentence being Criminal Appeal No. 8 of 2009. The aforesaid appeal was heard and disposed of by the Additional Sessions Judge Fast Track Court No. 1 Barasat by the judgement and order dated 23/9/2011 whereby the judgement of conviction of the petitioners was affirmed but the order of sentence was set aside and the case was remanded to the trial Court for hearing the convicts on the point of compensation and for considering the provision of section 360 of the Code of Criminal Procedure. Aggrieved, the petitioners preferred a revision petition before this Court being CRR 3683 of 2011 which was disposed of vide order dated 28/1/2013 with the following observation: "a) Let the trial court decide the questions regarding sentence formulated by the lower appellate court within three months from the receipt of the photostat certified copy of this order. b) Petitioners in case are aggrieved against the order passed by the trial court, they may file fresh appeal in the court of Sessions and the appeal so filed by them shall be decided within six months from the date of such filing. c) In case grievance of either of the parties survives, they may approach this Court by filing a revision petition." In compliance with the order of this Court as well as the order of the lower appellate Court, the trial Court heard the petitioners on the point of compensation and passed the order dated 5/7/2014 whereby the petitioners were sentenced to pay compensation of Rs. 3 lacs and also to pay a fine of Rs. 2000/- each in default of which to suffer simple imprisonment for two years and three months respectively. Against the aforesaid order the petitioners filed an appeal before the Sessions Judge Barasat being Criminal Appeal no. 29 of 2014 which was disposed of on 25/7/2018 by the impugned judgement and order as aforesaid.
(3.) Learned counsel for the petitioners argued that the partnership firm named "M/S Adeptecs" being the drawer of the cheque in question should have been arraigned and impleaded as an accused which is a condition precedent for invoking the vicarious liability of the partners/directors of the said firm/company under section 141 of the Negotiable Instruments Act. It is pointed out that the cheque was issued by the partnership firm and signed by the accused no. 2/petitioner no. 2 as an office bearer of the firm and as its authorized signatory. To fasten the liability upon the partners of the firm or upon the directors of the company, impleading the Company/firm as an accused is imperative. M/S Adeptecs, the drawer of the cheque not having been arraigned as an accused, the judgement and order of conviction and sentence against the petitioners are not sustainable. It is canvassed that the proviso to section 138(b) of the Negotiable Instruments Act was not complied by the holder of the cheque/complainant. Since no notice of demand was served upon M/S Adeptecs, the drawer of the cheque, the petitioners could not be prosecuted in their individual capacity without impleading the firm as an accused in view of the fact that the alleged transaction was between M/S Adeptecs and the opposite party herein/complainant. To buttress his argument learned counsel for the petitioners relied on the decision of the Supreme Court in the case of Aneeta Hada versus Godfather Travels and Tours Private Limited reported in, 2012 5 SCC 661. Reference has also been made to the case of Ajit Balse versus Ranga Karkere reported in, 2015 15 SCC 748 and Himanshu versus B. Shivamurthy and another reported in, 2019 2 Scale 100.;