Judgment :- V. BAKTHAVATSALU, J. The respondents are partners of a firm called "Karthikai Agencies". The appellants herein filed a complaint under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the Act") against the respondents and another person by name Chandrasekaran alleging that the first accused named in the complaint, against whom the case is split up and pending as separate cases, issued cheques and that those cheques which are the subject matter of all these appeals were dishonoured by the bank and that the cheques were returned stating "refer to drawer" and after issuing statutory notices, the complaint is filed. As the first accused named in the complaint namely, Chandrasekaran absconded, the trial court proceeded with the complaint as against the present respondents. Before the trial court two witnesses were examined including the complainant. The trial court on a consideration of the oral and documentary evidence has held that the complainant is entitled to file a complaint as a manager of the complainant's company. The contention raised by the accused that the cheques were obtained from Chandrasekaran under coercion was negatived by the trial court. It was urged before the trial court that the complaint without impleading the company is not maintainable against the respondents who are partners of the firm. The trial court accepted the above contention of the respondents and acquitted them. Aggrieved by the said order of acquittal, the complainant has filed these appeals. It is contended by the appellant/complainant that the trial court has not properly considered the scope of the enquiry contemplated under section 138 of the Negotiable Instruments Act and that the trial court failed to see that the respondents herein, the accused, are liable to be punished for contravention of section 138 of the Act even if the company is not prosecuted.On the other hand, learned counsel for the respondents/accused contended that it is alleged in the complaint that the company issued cheques and that the cheques were issued by one Chandrasekaran and that without prosecuting the company, the respondents cannot be held liable for the offences under section 138 of the Act. Before proceeding to consider the crucial point raised in these appeals, it would be relevant to state the facts, alleged in the complaint. Before proceeding to consider the crucial point raised in these appeals, it would be relevant to state the facts, alleged in the complaint. It is clearly stated in the complaint that "Karthikai Agencies" towards discharge of the liability issued cheques and that the cheques were issued by Chandrasekaran on behalf of Karthikai Agencies. It is also alleged that all the accused at the time when the offence was committed were active partners and were participating in the conduct of the affairs of the firm. And that the cheques issued by the first accused were on behalf of the firm and is binding on all the partners of the firm. In the reply notice issued by two of the accused, it is admitted that Karthikai Agencies is a partnership firm of which the accused are the partners. In view of the above facts, it has to be held that the accused are partners of the firm namely, Karthikai Agencies. Explanation (a) to sub-clause (2) of section 141 of the Act will clearly show that "company" means any body corporate and includes a firm or other association of individuals. As the firm Karthikai Agencies is a partnership firm consisting of partners it will fall under the definition of "company". Learned counsel for the appellant/complainant and respondents/accused cited certain decisions on the main point involved in these appeals. In a case reported in Krishan Bai v. Arti Press 1991 LW (Crl) 513; this court has held that without impleading the company, the complaint is not maintainable against the managing director. The court has given the above finding by relying upon a judgment of the apex court i.e., U.P. Pollution Control Board v. Modi Distillery. The same view was also reiterated by another learned judge of this court in a case reported in Jafferullah (A.) v. T. Stanes and Co. Ltd. 1994 1 LW (Crl.) 262. The court following the judgment of the apex court, which is referred to above, has held that the prosecution against the managing partner alone cannot be sustained without impleading the company.But in the case reported in Egmore Benefit Society Ltd. v. Balasigamani (K.), this court has taken a different view than that held in the two judgments of this High Court referred to above. This court following the judgment of the apex court reported in Sheoratan Agarwal v. State of Madhya Pradesh, has held that even without impleading the company the complaint is maintainable. The judgments of the apex court rendered in Sheoratan Agarwal v. State of Madhya Pradesh and U.P. Pollution Control Board v. Modi Distillery are referred to in almost all the judgments of the apex court and several High Courts. In Sheoratan Agarwal v. State of Madhya Pradesh, which relates to the Essential Commodities Act, the apex court has held thus : "Section 10 indicates persons who may be prosecuted when order under section 3 is contravened by a company. It does not lay down any condition that the person-in-charge or an officer of the company may not be separately prosecuted if the company itself is not prosecuted. Each or any of them may be separately prosecuted or along with the company. The only condition precedent for such prosecution is that there should be a finding that the contravention was by the company." The wording and language employed in section 10 of the Essential Commodities Act are similar to section 141 of the Act. The facts of the above case will clearly show that a complaint was filed against the managing director and production manager of the company. The accused moved the High Court under sections 397 and 482 of the Criminal Procedure Code to quash the proceedings on the ground that they could not in law be prosecuted unless the company itself was prosecuted. The High Court over-ruled the above contention and dismissed the petition. Relying upon an earlier decision reported in State of Madras v. C. V. Parekh, the apex court has given the ruling which is quoted above. It has been held by the apex court thus (page 1825 of AIR 1984 SC) : "There is no statutory compulsion that the person-in-charge or an officer of the company may not be prosecuted unless he be ranged along-side the company itself." However, the court has emphasised on one other factor. The court has held that there should be a finding that the contravention was by the company before the accused could be convicted and not that the company itself should have been prosecuted along with the accused. The court has held that there should be a finding that the contravention was by the company before the accused could be convicted and not that the company itself should have been prosecuted along with the accused. After analysing the entire case-law, the apex court has held that there is nothing in section 10 of the Essential Commodities Act which bars such prosecutions. The contrary view taken by the apex court in the case of U.P. Pollution Control Board v. Modi Distillery is relied on by the accused. In the above decision, it is held thus : "Although as a pure proposition of law there can be no vicarious liability of the chairman, vice-chairman, managing director and members of the board of directors under sub-section (1) or (2) of section 47 of the Act unless there was a prosecution against the company owning the industrial unit but on a combined reading of sub-sections (4) and (2) of section 47, it is clear that the chairman, vice-chairman, managing director and members of the board of directors of the company owning the respondent unit could be prosecuted as having been in charge of and responsible to the company, for the business of the unit and could be deemed to be guilty of the offence with which they were charged." The above decision was rendered on interpretation of section 47 of Water (Prevention and Control of Pollution) Act, 1974. In the above case it is held that the name of the industry has not been properly described in the complaint and therefore, the complainant was permitted to amend the name of the company. If the ruling laid down in the above decision is to be accepted, then there can be no difficulty in holding that the complaint under section 138 of the Act without impleading the company cannot be sustained. But the above decision has been distinguished in a recent judgment of the apex court reported in Anil Hada v. Indian Acrylic Ltd. The apex court had an occasion to consider an identical question relating to sections 138 and 141 of the Act. The question that arose for consideration in the above case was, "when a company, which committed the offence under section 138 of the Negotiable Instruments Act eludes from being prosecuted thereof, can the directors of that company be prosecuted for that offence ?" . The question that arose for consideration in the above case was, "when a company, which committed the offence under section 138 of the Negotiable Instruments Act eludes from being prosecuted thereof, can the directors of that company be prosecuted for that offence ?" . The facts of the above case will show that complaints were filed against the company also along with the directors of the company. But after the magistrate took cognizance of the offence and objection was raised on behalf of the company on the premise that winding up proceedings have been ordered by the court on the accused-company and that therefore, no prosecution could be continued against the accused-company. The magistrate seems to have accepted the above contention and in respect of three complaints, the magistrate ordered the complaint to remain in suspense against the accused-company until leave is obtained from the court concerned to continue with the prosecution proceedings. In the above circumstances, the accused in the complaint moved the trial court for dropping the prosecution against him also. But the magistrate dismissed the petition holding that the prosecution against the directors of the company could be maintained even without prosecuting the company itself. The revisions filed against the said order were also dismissed by the High Court. Aggrieved by the said order, the accused filed special leave petitions to the Supreme Court. The Supreme Court also considered the judgments rendered in State of Madras v. C. V. Parekh, U.P. Pollution Control Board v. Modi Distillery and Sheoratan Agarwal v. State of Madhya Pradesh, which are referred to above. On considering the entire case-law, the apex court has held thus (page 40 of 99 Comp Cas) : "If the offence was committed by a company it can be punished only if the company is prosecuted. But instead of prosecuting the company if a payee opts to prosecute only the persons falling within the second or third category the payee can succeed in the case only if he succeeds in showing that the offence was actually committed by the company. In such a prosecution the accused can show that the company has not committed the offence, though such company is not made an accused, and hence the prosecuted accused is not liable to be punished. In such a prosecution the accused can show that the company has not committed the offence, though such company is not made an accused, and hence the prosecuted accused is not liable to be punished. The provisions do not contain a condition that prosecution of the company is sine qua non for prosecution of the other persons who fall within the second and the third categories mentioned above. No doubt a finding that the offence was committed by the company is sine qua non for convicting those other persons. But if a company is not prosecuted due to any legal snag or otherwise, the other prosecuted persons cannot, on that score alone, escape from the penal liability created through the legal fiction envisaged in section 141 of the Act." It is further seen that in the above case, the company was impleaded as a party. But the prosecution could not be continued against the company due to the Winding up proceedings. In this case, the company is not impleaded as an accused along with the partners of the firm. But the above difference will not assist the case of the accused in any way, since the apex court in the above decision has held that even if the prosecution against the company were not taken or could not be continued, it is no bar for proceeding against the other persons falling within the purview of sub-sections (1) and (2) of section 141 of the Act. It is manifestly clear from section 141 of the Act that three categories of persons are mentioned against whom the prosecution could be launched. They are :(i) The company which committed the offence; (ii) Every one who was in charge of and responsible for the business of the company. (iii) Any other person who is the director or manager or secretary or officer of the company. In this case, the company is not impleaded as an accused. The person who issued the cheques has been impleaded as an accused. But the case as against him is split up. The present respondent/accused will fall under the category of Nos. 2 and 3. Therefore, I have no hesitation in holding that the above judgment of the apex court will squarely apply to the present accused, who are respondents in these appeals. But the case as against him is split up. The present respondent/accused will fall under the category of Nos. 2 and 3. Therefore, I have no hesitation in holding that the above judgment of the apex court will squarely apply to the present accused, who are respondents in these appeals. Therefore, there can be no impediment for the complainant to proceed against the present accused without prosecuting the company. As regards the judgment of the apex court in U.P. Pollution Control Board v. Modi Distillery, the apex court in the above latest decision i.e., Anil Hada v. Indian Acrylic Ltd. has held that the observations of the court are obiter. It is also clear that the apex court has followed the judgment in Sheoratan Agarwal v. State of Madhya Pradesh. It is, thus, seen from the above latest judgment that principles of law laid down by the apex court in Sheoratan Agarwal v. State of Madhya Pradesh, have to be followed. As already stated, in Sheoratan Agarwal v. State of Madhya Pradesh, the apex court has held that there is no bar to prosecuting the persons in charge of the company without prosecuting the company. It is also held in all the decisions that for prosecuting the directors or partners of the firm, there should be evidence or a finding to the effect that the contravention was made by the company.In this case, it is clearly alleged in the complaint that the cheques were issued by the company and that the first accused issued cheques on behalf of the company. It is, thus, seen from the averments contained in the complaint that the complainant has come forward with a definite version that the offence was committed by the company. Therefore, on the basis of the above averments in the complaint, the trial court has to give a definite finding on the question whether the offence was committed by the company. If it is held that the offence was committed by the company, then, it is open to the accused to rebut the presumption and set up other defences, available to them under law. In view of the latest pronouncement of the apex court, the finding of the trial court, that the complaint without impleading the partnership firm is not maintainable, has to be set aside. In view of the latest pronouncement of the apex court, the finding of the trial court, that the complaint without impleading the partnership firm is not maintainable, has to be set aside. Learned counsel for the respondents/accused relies upon a Full Bench judgment of this court reported in Ganga Bai v. Inspector Civil Supply, CID 1999 (2) CTC 385 (Mad) [FB]. Analysing the two judgments of the apex court i.e., Sheoratan Agarwal v. State of Madhya Pradesh, and U.P. Pollution Control Board v. Modi Distillery, the Full Bench has held thus : "The thrust in both the judgments is on the vicarious liability of the servants and if the facts in both the cases are to be seen, it would be seen that the act of contravention was not attributed to the servants alone, like in the present case, where, the act of selling the palmoil is effected personally and is alleged to have been committed personally by the three accused including the present appellant. At any rate, in Sheoratan Agarwal v. State of Madhya Pradesh, the Supreme Court has clarified the position in an extremely clear manner as pointed out in the earlier paragraphs. In both the cases, the Supreme Court has held that where there is an allegation against the company for having committed the contravention and where vicariously criminal liability is being alleged against the officers, then the concerned company should be joined as a party accused as a pre-condition thereof. We do not find anything contradictory inter se in these two cases." In the above case, the Full Bench has also held that it is only where there is an allegation that the authorised dealer itself has committed the offence, that its office-bearers cannot be prosecuted, unless the authorised dealer itself is prosecuted. The above decision will not assist the case of the respondents in any way, since the facts of the case on which the above judgment was rendered will show that there is no allegation that the offence was committed by the society i.e., the authorised dealer and that the allegation is attributed to each of the accused personally. But, in this case, it is clearly stated in the complaint that the cheques were issued by the firm and that the first accused issued cheques on behalf of the firm and that the firm committed the offence punishable under section 138 of the Act. But, in this case, it is clearly stated in the complaint that the cheques were issued by the firm and that the first accused issued cheques on behalf of the firm and that the firm committed the offence punishable under section 138 of the Act. In the face of such clear averments in the complaint, the decision relied on by the respondents would not strengthen their version that the present complaint against the respondents without impleading the company is not sustainable. It is no doubt true that one of the partners who issued the cheques is said to be absconding and that the case as against him is split up. But, the present accused cannot escape from their liability by contending that the partner who issued the cheques is not prosecuted as an accused in these cases. The presumption under section 139 of the Act can be drawn not only against the person who is the drawer of the cheque, but also against other partners. On this question also, the apex court in Anil Hada v. Indian Acrylic Ltd. has held thus (page 41) : "The aforesaid presumption is in favour of the holder of the cheque. It is not mentioned in the section that the said presumption would operate only against the drawer. After all a presumption is only for casting the burden of proof as to who should adduce evidence in a case. It is open to any one of the accused to adduce evidence to rebut the said presumption. In a prosecution where both the drawer company and its office bearers are arrayed as accused, and if the drawer company does not choose to adduce any rebuttal evidence it is open to the other office-bearers accused to adduce such rebuttal evidence. It is open to any one of the accused to adduce evidence to rebut the said presumption. In a prosecution where both the drawer company and its office bearers are arrayed as accused, and if the drawer company does not choose to adduce any rebuttal evidence it is open to the other office-bearers accused to adduce such rebuttal evidence. If that be so, even in a case where the drawer company is not made an accused but the office-bearers of the company alone are made the accused such office-bearers accused are well within their rights to adduce rebuttal evidence to establish that the company did not issue the cheque towards any antecedent liability.Hence, we are not impressed by the contention that section 139 of the Act would afford support to the plea that prosecution of the company is a sine qua non for prosecuting its directors under section 141 of the Act." In this case, it is alleged in the complaint that all the accused here at the time when the offence was committed were active partners and were participating in the conduct of the affairs of the company. PW-1 the complainant has also stated in the evidence that all the partners have got equal rights in the firm. The initial onus which lies on the complainant could be discharged by substantiating the averments in the complaint. As already stated, the fact that the accused are partners of the firm is not denied by the accused. In the above circumstances, the presumption that could be raised under section 139 of the Act can be rebutted by the present accused also by showing that the offence was committed without their knowledge and that they had exercised due diligence to prevent the commission of such offence. It is also open to the accused to place materials to show that they were only sleeping partners and that it was the first accused, the drawer of the cheque, who was in sole charge of the day-to-day administration of the firm. It is, thus, clear from the facts discussed above that the court has to give a definite finding that the offence was committed by the company. When once it is proved that the offence was committed by the company, the presumption can be rebutted by the accused by showing that the offence was committed without their knowledge and that they were only sleeping partners. When once it is proved that the offence was committed by the company, the presumption can be rebutted by the accused by showing that the offence was committed without their knowledge and that they were only sleeping partners. Without adverting to the above aspect of the case, the trial court has come to an erroneous conclusion in holding that the complainant failed to prove that the accused actively participated in the affairs of the company. The law relating to presumption and rebutting the presumption has not been properly considered and appreciated by the trial court. Therefore, looked at from any angle, the reasons assigned by the trial court for acquitting the accused cannot be sustained.As the trial court has not given a finding on the question whether the offence was committed by the company, the appellate court is not in a position to give a finding on the question whether the offence under section 138 of the Act is established. I have no other option except to remand the case to the trial court for fresh disposal in the light of the directions contained in the judgment. The trial court has to give a finding on the question whether the offence was committed by the company. The trial court should give an opportunity to the accused to rebut the presumption contained in sections 139 and 141 of the Act. It is open to the respondents to show that the offence was not committed by them and that even if the offence was committed, it was committed without their knowledge and that they were only sleeping partners. The trial court is directed to give a specific finding on the above questions and dispose of the case according to law. In the result, the criminal appeals are allowed. The orders of acquittal passed by the trial court is set aside. All the cases are remanded to the trial court for fresh disposal in the light of the directions contained in the judgment. The trial court is directed to restore the cases on file and dispose of the same according to law after issuing notice to the accused within one month from the date of receipt of a copy of the order.